Wednesday, November 25, 2009
Tuesday, November 24, 2009
Customs & Border Protection in Buffalo Advises Travelers to Prepare for Busy Holiday Weekend
Buffalo, N.Y. - U.S. Customs and Border Protection is reminding travelers planning trips across the border into the United States to make sure they have the proper documents this weekend in conjunction with the U.S. Thanksgiving holiday. As a result, U.S. Customs and Border Protection officials want to remind the traveling public that there are a number of steps that can be taken to facilitate their arrival into the United States.
Travelers are reminded to check traffic at all local border crossings within the Buffalo/Niagara region and select the crossing that is least congested. The most significant delays that occurred last Thanksgiving holiday weekend were on Sunday between the hours of 10 a.m. through 2 p.m. at all three Buffalo/Niagara region border crossing points.
Travelers can easily obtain current border traffic conditions by calling the Niagara Falls Bridge Commission’s toll free number at 1-800-715-6722.
Travelers should prepare for the inspection process before arriving at the inspection booth. Individuals should have their crossing documents available for inspection and they should be prepared to declare all items acquired outside the U.S. In compliance with full implementation of the Western Hemisphere Travel Initiative, which commenced June 1, 2009, all travelers, including U.S. and Canadian citizens, will need to present documentary proof of citizenship. These documents include a Passport, U.S. Passport Card, trusted traveler card (NEXUS, SENTRI or FAST) or an Enhanced Drivers License. Children under the age of 16 can present an original or copy of their birth certificate. CBP will remain practical and flexible in its approach to full implementation of the Western Hemisphere Travel Initiative and will continue to educate and inform the traveling public. Please visit the WHTI Web site for additional information. ( getyouhome.gov )
Frequent cross-border travelers are encouraged to participate in the NEXUS program, which allows pre-screened, low risk travelers to proceed with little or no delay into the United States and Canada. Application forms are available on the Canada Border Services Agency Web site at and travelers can apply on. Additionally, NEXUS information is available toll-free at 1-866-NEXUS 26 (1-866-639-8726). ( www.cbsa-asfc.gc.ca )
U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation's borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds
Travelers are reminded to check traffic at all local border crossings within the Buffalo/Niagara region and select the crossing that is least congested. The most significant delays that occurred last Thanksgiving holiday weekend were on Sunday between the hours of 10 a.m. through 2 p.m. at all three Buffalo/Niagara region border crossing points.
Travelers can easily obtain current border traffic conditions by calling the Niagara Falls Bridge Commission’s toll free number at 1-800-715-6722.
Travelers should prepare for the inspection process before arriving at the inspection booth. Individuals should have their crossing documents available for inspection and they should be prepared to declare all items acquired outside the U.S. In compliance with full implementation of the Western Hemisphere Travel Initiative, which commenced June 1, 2009, all travelers, including U.S. and Canadian citizens, will need to present documentary proof of citizenship. These documents include a Passport, U.S. Passport Card, trusted traveler card (NEXUS, SENTRI or FAST) or an Enhanced Drivers License. Children under the age of 16 can present an original or copy of their birth certificate. CBP will remain practical and flexible in its approach to full implementation of the Western Hemisphere Travel Initiative and will continue to educate and inform the traveling public. Please visit the WHTI Web site for additional information. ( getyouhome.gov )
Frequent cross-border travelers are encouraged to participate in the NEXUS program, which allows pre-screened, low risk travelers to proceed with little or no delay into the United States and Canada. Application forms are available on the Canada Border Services Agency Web site at and travelers can apply on. Additionally, NEXUS information is available toll-free at 1-866-NEXUS 26 (1-866-639-8726). ( www.cbsa-asfc.gc.ca )
U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation's borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds
Monday, November 23, 2009
Friday, November 20, 2009
BIA Decision: Clarification of Voluntary Departure Requirements
The Board of Immigration Appeals has just issued a decision entitled Matter of Catherine VELASCO, 25 I&N Dec. 143 (BIA 2009).
The Board has ruled that:
(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), do not apply retroactively.
(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.
(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board, within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.
The Board has ruled that:
(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), do not apply retroactively.
(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.
(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board, within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.
Brief Filed with the Second Circuit Court of Appeals
I just finished my brief in support of a petition for review that we filed with the Second Circuit Court of Appeals. I argued that the Board of Immigration utilized an improper standard when adjudicating my client's Motion to Reopen, and that the record reflects that there was reasonable cause for my client's failure to appear at his exclusion proceedings.
When adjudicating my client's motion the Board departed from the “totality of the circumstances” standard for determining reasonableness, considered facts not in the record, and cited a time limitation as a basis for the denial, specifically referencing the thirteen year period between the entrance of the exclusion order and the filing of the Petitioner’s motion to reopen as a basis for the Board’s denial.
I also argued that my client was not required to file a bar complaint against his former lawyer who had been disbarred from the practice of law.
The Government now has an opportunity to respond to our brief, and then it will be a waiting game. I'll keep you posted.
When adjudicating my client's motion the Board departed from the “totality of the circumstances” standard for determining reasonableness, considered facts not in the record, and cited a time limitation as a basis for the denial, specifically referencing the thirteen year period between the entrance of the exclusion order and the filing of the Petitioner’s motion to reopen as a basis for the Board’s denial.
I also argued that my client was not required to file a bar complaint against his former lawyer who had been disbarred from the practice of law.
The Government now has an opportunity to respond to our brief, and then it will be a waiting game. I'll keep you posted.
Thursday, November 19, 2009
Lou Dobbs on The Daily Show
| The Daily Show With Jon Stewart | Mon - Thurs 11p / 10c | |||
| Exclusive - Lou Dobbs Extended Interview Pt. 1 | ||||
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Wednesday, November 18, 2009
H-1B Cap Count
The American Immigration Lawyers Association (AILA) has reported that as of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed with USCIS.
USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap.
Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000.
USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
AILA InfoNet Doc. No. 09042065 (posted Nov. 18, 2009)
USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap.
Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000.
USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
AILA InfoNet Doc. No. 09042065 (posted Nov. 18, 2009)
2012 Dobbs-Menendez Match for Senate Seat in N.J.?
The New York Times has reported that former CNN talking head Lou Dobbs has not denied speculation that he may consider challenging first term incumbent Senator Bob Menendez (D-N.J.) for his seat in 2012. If this were to happen it will be essential for immigration reform activists to get behind Senator Menendez in 2012 when he is up for re-election.
Senator Menendez is a key figure in the fight for comprehensive immigration reform, and is the co-sponsor of The Military Families Act, a bill that will authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts.
Senator Menendez is a key figure in the fight for comprehensive immigration reform, and is the co-sponsor of The Military Families Act, a bill that will authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts.
Tuesday, November 17, 2009
Saturday, November 14, 2009
Friday, November 13, 2009
BIA Decision: Standard for Adjudicating Motions for Continuance
The Board of Immigration Appeals has just issued a new decision entitled Matter of Rajah, Interim Decision #3662, 25 I&N Dec. 127 (BIA 2009)
The case involves a native and citizen of Morocco that came to the United States on December 13, 1994 as a visitor. The Respondent was granted six months of visitor status, but did not depart the United States when his status expired. Meanwhile the Respondent was able to find unautorized employment in the United States in order to support himself.
The Respondent’s employer ultimately filed a labor certification on his behalf on April 30, 2001, which would render him eligible to apply for adjustment of status under former 245(i).
On April 22, 2003, almost ten years after his arrival, immigration court proceedings were instituted against the Respondent charging him with removability for overstaying his visitor status. The Respondent’s first hearing before the Immigration Judge was on May 30, 2003.
The Respondent requested and obtained multiple continuances of his case (thirteen) during an 18-month period. The proceedings were continued to enable him to obtain counsel to represent him, to allow the Department to respond to his motion to terminate proceedings, and to enable the Respondent to provide the Court with a status update on the pending labor certification.
Finally, on December 16, 2004, the Respondent sought another continuance based on the pending labor certification, but the Immigration Judge denied his request, and the Board of Immigration Appeals dismissed the appeal. The case then was reviewed by the Second Circuit Court of Appeals who remanded the case back to the Board of Immigration Appeals for the Board to set “standards that reflect various situations of those seeking such continuances.” See Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008).
On remand the Board ruled that:
(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment -based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations;
(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status; and
(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.
The Board applied these standards to the Respondent's case and dismissed his appeal because despite the fact that his labor certification was ultimately approved while he was fighting to remain in the United States, an I-140 Petition was not filed within 180 days of the certification. The Respondent therefore did not have immediate eligibility to apply for adjustment of status despite the fact that he had been grandfathered in under 245(i).
The Respondent had a new employer who was also willing to sponsor him for his Green Card, but had not taken any steps to begin the process. As a result the Board dismissed the appeal based upon the Respondent’s failure to establish a prima facie case for the relief sought.
The case involves a native and citizen of Morocco that came to the United States on December 13, 1994 as a visitor. The Respondent was granted six months of visitor status, but did not depart the United States when his status expired. Meanwhile the Respondent was able to find unautorized employment in the United States in order to support himself.
The Respondent’s employer ultimately filed a labor certification on his behalf on April 30, 2001, which would render him eligible to apply for adjustment of status under former 245(i).
On April 22, 2003, almost ten years after his arrival, immigration court proceedings were instituted against the Respondent charging him with removability for overstaying his visitor status. The Respondent’s first hearing before the Immigration Judge was on May 30, 2003.
The Respondent requested and obtained multiple continuances of his case (thirteen) during an 18-month period. The proceedings were continued to enable him to obtain counsel to represent him, to allow the Department to respond to his motion to terminate proceedings, and to enable the Respondent to provide the Court with a status update on the pending labor certification.
Finally, on December 16, 2004, the Respondent sought another continuance based on the pending labor certification, but the Immigration Judge denied his request, and the Board of Immigration Appeals dismissed the appeal. The case then was reviewed by the Second Circuit Court of Appeals who remanded the case back to the Board of Immigration Appeals for the Board to set “standards that reflect various situations of those seeking such continuances.” See Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008).
On remand the Board ruled that:
(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment -based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations;
(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status; and
(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.
The Board applied these standards to the Respondent's case and dismissed his appeal because despite the fact that his labor certification was ultimately approved while he was fighting to remain in the United States, an I-140 Petition was not filed within 180 days of the certification. The Respondent therefore did not have immediate eligibility to apply for adjustment of status despite the fact that he had been grandfathered in under 245(i).
The Respondent had a new employer who was also willing to sponsor him for his Green Card, but had not taken any steps to begin the process. As a result the Board dismissed the appeal based upon the Respondent’s failure to establish a prima facie case for the relief sought.
Thursday, November 12, 2009
Sen. Menendez (D-NJ) Introduces the Military Families Act (S.2757)
Congressman Robert Menéndez [D-NJ] has introduced an immigration related Bill entitled S.2757: The Military Families Act. The bill will authorize the adjustment of status for immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts.
The Bill has been co-sponsored by five other Democrats:
Sen. Richard Durbin [D, IL]
Sen. Russell Feingold [D, WI]
Sen. Kirsten Gillibrand [D, NY]
Sen. Daniel Inouye [D, HI]
Sen. Mary Landrieu [D, LA]
Contact your representatives in Congress and urge for the passage of S.2757.
The Bill has been co-sponsored by five other Democrats:
Sen. Richard Durbin [D, IL]
Sen. Russell Feingold [D, WI]
Sen. Kirsten Gillibrand [D, NY]
Sen. Daniel Inouye [D, HI]
Sen. Mary Landrieu [D, LA]
Contact your representatives in Congress and urge for the passage of S.2757.
Supreme Court Hears Immigration Case: Kucana v. Holder (08-911)
On November 10, 2009, the United States Supreme Court heard oral arguments on a case that arose from the United States Court of Appeals for the Seventh Circuit, Kucana v. Holder (08-911).
The issue in the case involves whether 8 U.S.C. Section 1252(a)(2)(B)(ii) precludes federal courts from reviewing rulings of the Board of Immigration Appeals relating to motions to reopen.
Factually the case involves a citizen from Albania that over slept his alarm, and missed his immigration court hearing. As a result, his application for asylum was denied and the IJ ordered his removal in absentia.
Kucana ultimately appealed to the Seventh Circuit Court of Appeals to review the Board's ruling denying his motion to reopen, but the Seventh Circuit refused to reverse the BIA, ruling that the Circuit Court did not have jurisdiction to review the BIA's denial of the motion to reopen in disagreement with several other Circuits that have found that they do maintain jurisdiction.
Shockingly, the Supreme Court of the United States granted cert in this case. As they say in the immigration trenches: bad facts make bad law. I'm crossing my fingers. Personally, I just don't have a ton of sympathy for someone who overslept his alarm. I'm sure I'm not alone.
The U.S. Supreme Court granted certiorari in order to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien’s immigration proceeding under 8 U.S.C. § 1252(a)(2)(B)(ii).
The question presented is whether Judicial review of an immigrant's legal claim is set forth in 8 U.S.C. § 1252(a)(2)(B)(ii), which limits judicial review of discretionary denials by the Attorney General or the Secretary of Homeland Security, and in what situation does a Federal Appeals Court have jurisdiction to review an immigrant’s petition to reopen an immigration proceeding that was based on a discretionary denial.
More specifically, the Court must address whether the Attorney General's discretionary authority is "specified" under 8 U.S.C. § 1252(a)(2)(B)(ii) and includes a decision of the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding.
Click here to read the transcript of the oral argument.
Click here for the SCOTUS Wiki on the case.
The issue in the case involves whether 8 U.S.C. Section 1252(a)(2)(B)(ii) precludes federal courts from reviewing rulings of the Board of Immigration Appeals relating to motions to reopen.
Factually the case involves a citizen from Albania that over slept his alarm, and missed his immigration court hearing. As a result, his application for asylum was denied and the IJ ordered his removal in absentia.
Kucana ultimately appealed to the Seventh Circuit Court of Appeals to review the Board's ruling denying his motion to reopen, but the Seventh Circuit refused to reverse the BIA, ruling that the Circuit Court did not have jurisdiction to review the BIA's denial of the motion to reopen in disagreement with several other Circuits that have found that they do maintain jurisdiction.
Shockingly, the Supreme Court of the United States granted cert in this case. As they say in the immigration trenches: bad facts make bad law. I'm crossing my fingers. Personally, I just don't have a ton of sympathy for someone who overslept his alarm. I'm sure I'm not alone.
The U.S. Supreme Court granted certiorari in order to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien’s immigration proceeding under 8 U.S.C. § 1252(a)(2)(B)(ii).
The question presented is whether Judicial review of an immigrant's legal claim is set forth in 8 U.S.C. § 1252(a)(2)(B)(ii), which limits judicial review of discretionary denials by the Attorney General or the Secretary of Homeland Security, and in what situation does a Federal Appeals Court have jurisdiction to review an immigrant’s petition to reopen an immigration proceeding that was based on a discretionary denial.
More specifically, the Court must address whether the Attorney General's discretionary authority is "specified" under 8 U.S.C. § 1252(a)(2)(B)(ii) and includes a decision of the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding.
Click here to read the transcript of the oral argument.
Click here for the SCOTUS Wiki on the case.
Fifth Circuit on Crime of Violence
The United States Court of Appeals for the Fifth Circuit has just ruled in Kerr v. Holder, No. 08-60020 (Nov. 10, 2009), that the Board of Immigration Appeals erred in its application of the categorical approach and failed to apply the modified categorical approach when determining whether false imprisonment under Fla. Stat. § 787.02 is a crime of violence.
The Fifth remanded the case back to the BIA for a proper determination on the issue.
The Fifth remanded the case back to the BIA for a proper determination on the issue.
Wednesday, November 11, 2009
Tuesday, November 10, 2009
Friday, November 6, 2009
212(h) Waiver May be Available to Cure Convictions for Possession or Use of Drug Paraphernalia
The Board of Immigration Appeals has just ruled in Matter of Lael MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009) that:
(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia; and
(2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”
The case involved a citizen of Mexico, conceded his removability under section 212(a)(6)(A)(i) of the Act because he was unlawfully present in the United States, but who sought relief from removal in the form of adjustment of status under section 245(i) of the Act. Former section 245(i) allows certain individuals to obtain a Green Card inside the United States through the payment a $1,000.00 penalty fee to excuse minor immigration violations. Section 245(i) does not waiver criminal grounds of removability.
The Immigration Court ruled that the Respondent was not eligible to apply for a Green Card because of a 2006 Minnesota conviction for possessing drug paraphernalia, and that this conviction renders him ineligible for a waiver under section 212(h) of the Act because his offense did not “relate[] to a single offense of simple possession of 30 grams or less of marijuana”.
The Respondent appealed the Immigration Court’s decision, and the Board of Immigration Appeals concluded that the Respondent’s Minnesota conviction for possessing drug paraphernalia does render him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, and that in order to adjust he must obtain a 212(h) waiver, but that the underlying Minnesota criminal statute that the Respondent was convicted under encompasses some offenses that enable him to apply for a 212(h) waiver, and some that do not.
The Board further concluded to qualify for a 212(h) waiver, the Respondent must establish that his conviction “relates to a single offense of simple possession of 30 grams or less of marijuana.”
The Board remanded the case back to the Immigration Court to allow the Respondent the opportunity to establish that the conduct that resulted in his conviction related to a single offense of simple possession of 30 grams or less of marijuana.
Matthew L. Kolken, Esq.
(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia; and
(2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”
The case involved a citizen of Mexico, conceded his removability under section 212(a)(6)(A)(i) of the Act because he was unlawfully present in the United States, but who sought relief from removal in the form of adjustment of status under section 245(i) of the Act. Former section 245(i) allows certain individuals to obtain a Green Card inside the United States through the payment a $1,000.00 penalty fee to excuse minor immigration violations. Section 245(i) does not waiver criminal grounds of removability.
The Immigration Court ruled that the Respondent was not eligible to apply for a Green Card because of a 2006 Minnesota conviction for possessing drug paraphernalia, and that this conviction renders him ineligible for a waiver under section 212(h) of the Act because his offense did not “relate[] to a single offense of simple possession of 30 grams or less of marijuana”.
The Respondent appealed the Immigration Court’s decision, and the Board of Immigration Appeals concluded that the Respondent’s Minnesota conviction for possessing drug paraphernalia does render him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, and that in order to adjust he must obtain a 212(h) waiver, but that the underlying Minnesota criminal statute that the Respondent was convicted under encompasses some offenses that enable him to apply for a 212(h) waiver, and some that do not.
The Board further concluded to qualify for a 212(h) waiver, the Respondent must establish that his conviction “relates to a single offense of simple possession of 30 grams or less of marijuana.”
The Board remanded the case back to the Immigration Court to allow the Respondent the opportunity to establish that the conduct that resulted in his conviction related to a single offense of simple possession of 30 grams or less of marijuana.
Matthew L. Kolken, Esq.
Thursday, November 5, 2009
Wednesday, November 4, 2009
Second Circuit Court of Appeals Dismisses Maher Arar's Lawsuit
The Second Circuit, in a 184 page in banc decision, has affirmed the District Court's dismissal of Maher Arar's lawsuit.
Maher Arar is an individual who was detained while changing planes at Kennedy Airport in New York because Canadian authorities believed that he was a member of Al Qaeda. Mr. Arar alleges that after being taken into custody he was mistreated over a twelve day period by U.S. officials, and then the real nightmare began.
After the 12 days of alleged mistreatment by the hand of the United States government, Mr. Arar alleges that the United States government sent him to Syria via Jordan so that he could be properly tortured and interrogated by Syrian officials.
Mr. Arar sued former United States Attorney General John Ashcroft; former Secretary of Homeland Security Tom Ridge; Robert Mueller, Director of the United States Federal Bureau of Investigation (FBI), and others in the United States District Court for the Eastern District of New York. Mr Arar’s alleged that the above mentioned individuals’ actions violated the Torture Victim Protection Act (“TVPA”) and the Fifth Amendment.
The District Court dismissed Mr. Arar’s complaint unanimously holding that: (1) the District Court had personal jurisdiction over Thompson, Ashcroft, and Mueller; (2) Mr. Arar failed to state a claim under the TVPA; and (3) Arar failed to establish subject matter jurisdiction over his request for a declaratory judgment. See Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008).
Mr. Arar appealed this decision to the Second Circuit Court of Appeals, but his suit was initially dismissed. Thereafter, an in banc rehearing occurred, and the Second Circuit in a 184 page decision vacated the initial opinion, but unfortunately for justice, affirmed the District Court’s ruling.
Parenthetically, the Honorable Sonia Sotomayor was a member of the in banc panel and participated in oral argument.
So much for accountability.
Maher Arar is an individual who was detained while changing planes at Kennedy Airport in New York because Canadian authorities believed that he was a member of Al Qaeda. Mr. Arar alleges that after being taken into custody he was mistreated over a twelve day period by U.S. officials, and then the real nightmare began.
After the 12 days of alleged mistreatment by the hand of the United States government, Mr. Arar alleges that the United States government sent him to Syria via Jordan so that he could be properly tortured and interrogated by Syrian officials.
Mr. Arar sued former United States Attorney General John Ashcroft; former Secretary of Homeland Security Tom Ridge; Robert Mueller, Director of the United States Federal Bureau of Investigation (FBI), and others in the United States District Court for the Eastern District of New York. Mr Arar’s alleged that the above mentioned individuals’ actions violated the Torture Victim Protection Act (“TVPA”) and the Fifth Amendment.
The District Court dismissed Mr. Arar’s complaint unanimously holding that: (1) the District Court had personal jurisdiction over Thompson, Ashcroft, and Mueller; (2) Mr. Arar failed to state a claim under the TVPA; and (3) Arar failed to establish subject matter jurisdiction over his request for a declaratory judgment. See Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008).
Mr. Arar appealed this decision to the Second Circuit Court of Appeals, but his suit was initially dismissed. Thereafter, an in banc rehearing occurred, and the Second Circuit in a 184 page decision vacated the initial opinion, but unfortunately for justice, affirmed the District Court’s ruling.
Parenthetically, the Honorable Sonia Sotomayor was a member of the in banc panel and participated in oral argument.
So much for accountability.
Tuesday, November 3, 2009
USCIS Updates FY 2010 H-1B and H-2B Count
The American Immigration Lawyers Association (AILA) has just reported that USCIS has updated its count of FY 2010 cap-subject H-1B petitions and advanced degree cap-exempt petitions, as well as FY 2010 H-2B petitions received as of 10/25/2009.
As of October 25, 2009, approximately 52,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. Any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. AILA Doc. No. 09042065.
ICE PSA on Human Trafficking
Immigration and Customs Enforcement has released the following PSA relating to Human trafficking and human smuggling.
Human trafficking and human smuggling represent significant risks to homeland security. Would-be terrorists and criminals can often access the same routes and utilize the same methods being used by human smugglers. U.S. Immigration and Customs Enforcements Human Smuggling and Trafficking Unit works to identify criminals and organizations involved in these illicit activities.
Human Trafficking is the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. Sex trafficking occurs when a commercial sex act is induced by force, fraud, or coercion, or when the person induced to perform such acts has not attained 18 years of age.
For more information, please go to www.ice.gov.
Board of Immigration Appeals Rules that Date of Plea Agreement, Not Sentencing, Determines Eligibility for 212(c) Waiver
Matter of Alejandro MORENO-ESCOBOSA, 25 I&N Dec. 114 (BIA 2009)
The Board of Immigration Appeals has sustained the appeal of a Green Card holder who is a native and citizen of Mexico, and the father of four United States citizen children. Unfortunately, on July 21, 1991, Mr. Morena-Escobosa pled guilty in Arizona for unlawful possession of more than 8 pounds of marijuana. He was sentenced fourteen years later on October 26, 2005, to more than four years of imprisonment. The delay in sentencing resulted because Mr. Moreno-Escobosa disappeared after entering his guilty plea.
When Immigration Court proceedings were instituted against Mr. Moreno-Escobosa he argued that despite his conviction he remains eligible to apply for relief from removal under former INA §212(c) because he entered a guilty plea on July 21, 1991, prior to the repealing of INA § 212(c).
Mr. Moreno-Escobosa’s argument was predicated on the United States Supreme Court’s ruling in INS v. St. Cyr, 533 U.S. 289 (2001), where the Court determined that despite the fact that section 212(c) was repealed in 1996, the waiver remains available as a form of relief from removal to individuals who had been convicted by a plea agreement, and where at the time they entered their plea they would have been eligible for a 212(c) waiver.
The Board agreed with Mr. Moreno-Escobosa sustaining his appeal entering the following ruling:
(1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994); and
(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.
The case has been remanded back to the Immigration Court so that the Court can properly evaluate all of Mr. Moreno-Escobosa’s equities which include his significant employment history and his volunteer and civic activities.
The Board of Immigration Appeals has sustained the appeal of a Green Card holder who is a native and citizen of Mexico, and the father of four United States citizen children. Unfortunately, on July 21, 1991, Mr. Morena-Escobosa pled guilty in Arizona for unlawful possession of more than 8 pounds of marijuana. He was sentenced fourteen years later on October 26, 2005, to more than four years of imprisonment. The delay in sentencing resulted because Mr. Moreno-Escobosa disappeared after entering his guilty plea.
When Immigration Court proceedings were instituted against Mr. Moreno-Escobosa he argued that despite his conviction he remains eligible to apply for relief from removal under former INA §212(c) because he entered a guilty plea on July 21, 1991, prior to the repealing of INA § 212(c).
Mr. Moreno-Escobosa’s argument was predicated on the United States Supreme Court’s ruling in INS v. St. Cyr, 533 U.S. 289 (2001), where the Court determined that despite the fact that section 212(c) was repealed in 1996, the waiver remains available as a form of relief from removal to individuals who had been convicted by a plea agreement, and where at the time they entered their plea they would have been eligible for a 212(c) waiver.
The Board agreed with Mr. Moreno-Escobosa sustaining his appeal entering the following ruling:
(1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994); and
(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.
The case has been remanded back to the Immigration Court so that the Court can properly evaluate all of Mr. Moreno-Escobosa’s equities which include his significant employment history and his volunteer and civic activities.
Summary of Immigration Related Bills in Congress
The American Immigration Lawyers Association (AILA) has posted the following summary of immigration-related bills that have been introduced into the House of Representatives and the Senate during the months of September and October. AILA InfoNet Doc. No. 09110264 (posted Nov. 2, 2009)
New IDEA (Illegal Deduction Elimination Act) (H.R. 3580)
Introduced by Rep. King (R-IA) on 9/16/09
Summary: To amend the Internal Revenue Code of 1986 to clarify that wages paid to unauthorized aliens may not be deducted from gross income, and for other purposes.
Improving Methods to Promote Regular Occurrences of the Verification of Employability Status Act of 2009 (H.R. 3676)
Introduced by Rep. Broun (R-GA) on 9/30/09
Summary: To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to make permanent the E-Verify Program, and for other purposes.
H.R. 3687
Introduced by Rep. Issa (R-CA) on 10/1/09
Summary: To amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced degree in the United States
Dairy and Sheep H-2A Visa Enhancement Act (H.R. 3744)
Introduced by Rep. Arcuri (D-NY) on 10/7/09
Summary: To amend the Immigration and Nationality Act to provide a special rule for the period of admission of H-2A nonimmigrants employed as dairy workers and sheepherders, and for other purposes.
Fairness in Representation Act (H.R. 3797)
Introduced by Rep. Foxx (R-NC) on 10/13/09
Summary: To prevent congressional reapportionment distortions by requiring that, in the questionnaires used in the taking of any decennial census of population, a checkbox or other similar option be included for respondents to indicate citizenship status or lawful presence in the United States.
Every Person Counts Act (H.R. 3855)
Introduced by Rep. Baca (D-CA) on 10/20/09
Summary: To amend title 13, United States Code, to make clear that each decennial census, as required for the apportionment of Representatives in Congress among the several States, shall tabulate the total number of persons in each State, and to provide that no information regarding United States citizenship or immigration status may be elicited in any such census.
Monday, November 2, 2009
Kucana v. Holder (08-911)
On November 10, 2009, the United States Supreme Court is set to hear oral arguments on a case that arose from the United States Court of Appeals for the Seventh Circuit, Kucana v. Holder (08-911).
The case involves, Kucana, an immigrant from Albania, who applied for asylum but overslept his hearing, which resulted in him being ordered removed in absentia by the Immigration Judge. Kucana then filed a motion with the Court requesting that it reopen his proceeding and vacate the removal order. His motion was denied, and the Board of Immigration Appeals affirmed the IJ's decision.
A second motion to reopen was then filed with an affidavit from a professor of Balkan history, who stated that there was a reasonable fear of future political persecution in Albania. The second motion was also denied partially on the basis that conditions in Albania had improved since the filing of the 1997 asylum application.
Kucana appealed to the Seventh Circuit Court of Appeals to review the Board's ruling, but the 7th ruled that the Court lacked jurisdiction to review the Board’s decision in this case.
The U.S. Supreme Court granted certiorari in order to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien’s immigration proceeding under 8 U.S.C. § 1252(a)(2)(B)(ii).
The question presented is whether Judicial review of an immigrant's legal claim is set forth in 8 U.S.C. § 1252(a)(2)(B)(ii), which limits judicial review of discretionary denials by the Attorney General or the Secretary of Homeland Security, and in what situation does a Federal Appeals Court have jurisdiction to review an immigrant’s petition to reopen an immigration proceeding that was based on a discretionary denial.
More specifically,the Court will address whether the Attorney General's discretionary authority is "specified" under 8 U.S.C. § 1252(a)(2)(B)(ii) and includes a decision of the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding.
The case involves, Kucana, an immigrant from Albania, who applied for asylum but overslept his hearing, which resulted in him being ordered removed in absentia by the Immigration Judge. Kucana then filed a motion with the Court requesting that it reopen his proceeding and vacate the removal order. His motion was denied, and the Board of Immigration Appeals affirmed the IJ's decision.
A second motion to reopen was then filed with an affidavit from a professor of Balkan history, who stated that there was a reasonable fear of future political persecution in Albania. The second motion was also denied partially on the basis that conditions in Albania had improved since the filing of the 1997 asylum application.
Kucana appealed to the Seventh Circuit Court of Appeals to review the Board's ruling, but the 7th ruled that the Court lacked jurisdiction to review the Board’s decision in this case.
The U.S. Supreme Court granted certiorari in order to clarify whether a court has jurisdiction to review a decision by the Board of Immigration Appeals to reopen an alien’s immigration proceeding under 8 U.S.C. § 1252(a)(2)(B)(ii).
The question presented is whether Judicial review of an immigrant's legal claim is set forth in 8 U.S.C. § 1252(a)(2)(B)(ii), which limits judicial review of discretionary denials by the Attorney General or the Secretary of Homeland Security, and in what situation does a Federal Appeals Court have jurisdiction to review an immigrant’s petition to reopen an immigration proceeding that was based on a discretionary denial.
More specifically,the Court will address whether the Attorney General's discretionary authority is "specified" under 8 U.S.C. § 1252(a)(2)(B)(ii) and includes a decision of the Board of Immigration to deny an alien’s motion to reopen an immigration proceeding.
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