Wednesday, September 30, 2009

2011 Diversity Visa Lottery Program Registration

The Department of State has published an announcement in the Federal Register notifying qualifying individuals of the opening of the registration period for the DV-2011 Diversity Visa lottery.

If you are eligible to apply for the DV-2011 Diversity Visa lottery you must submit your application electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009.

Click here for the full DV-2011 Instructions.

Tuesday, September 29, 2009

Women Facing Persecution in Pakistan

Today I am working on an asylum application for a Pakistani woman who fled Pakistan because she feared for her life. At the time she escaped, she was 29, unmarried, and pregnant. She was engaged to a man that her family had arranged a marriage with, and he was not the father of her child.

Moreover, she was a Sunni Muslim, and the father of her child was a Shi’a Muslim. Knowing that this was a death sentence for her, she and the father of her child came to the United States in search of safety.

Here is some of the initial research I have gathered on the persecution of women in Pakistan who have an out-of-wedlock child, and/or marry the man of their choosing:

Just a few months ago, in June, a young woman who married against the will of her family was beaten and killed, along with her husband and three of his relatives, by over three dozen attackers headed by her family, “to avenge the so-called dishonour brought to the family due to the elopement of the girl.”

Last September, three women who attempted to marry men of their own choosing were kidnapped, driven to the desert, beaten, shot, and then buried alive. Upon hearing of this heinous crime, a local politician stated that “such acts were part of a ‘centuries-old tradition’ and he would ‘continue to defend them.’”

Women in Pakistan live in fear. They face death by shooting, burning or killing with axes if they are deemed to have brought shame on the family. They are killed for supposed ‘illicit’ relationships, for marrying men of their choice, for divorcing abusive husbands. They are even murdered by their kin if they are raped as they are thereby deemed to have brought shame on their family. The truth of the suspicion does not matter – merely the allegation is enough to bring dishonour on the family and therefore justifies the slaying.”

California Lawmakers call for Suspension of Immigration Laws

Does anyone else find it ironic that that California State lawmakers have passed a resolution that calls for the non-enforcement of laws?

It has been reported that California State Senator Gilbert Cedillo-D sponsored a resolution in the California Senate that has passed by a partisan vote of Democrats that calls for a moratorium on the enforcement of all Federal and State immigration laws in the State of California.

Now, I'm not saying that the United States immigration laws don't need to be fixed, but to suspend immigration enforcement all together is simply ridiculous, and sets a terrible, and dangerous precedent. Thankfully this resolution isn't worth the paper that it is written on.

Only in California.

Click here to read the entire text of the joint resolution.

Monday, September 28, 2009

Former Ambassador to Mexico James Jones, on commerce and the southwest border

Find more videos like this on Our Border

In the Shadow of the Raid

The documentary "In the Shadow of the Raid" premiers at the Morelia International Film Festival, in Mexico between Oct. 3 and Oct. 11.

Second Circuit to Immigration Judge: If you deny asylum, you must give legally sufficient reasons for the denial.

In an unpublished decision (Madaminova v. Holder, Sept. 25, 2009), the Second Circuit Court of Appeals has put their foot down ruling that an Immigration Judge must give sufficient reasons for denying an application for asylum, and may not simply just say no.

The Court ruled that conclusory determinations regarding incidents an asylum applicant describes in their application for asylum are insufficient, and that the Immigration Court must explain why it is denying the asylum application.

The Court further ruled that the Immigration Judge must identify the legal standard relied upon in assessing whether the testified experience constitutes persecution, must consider the cumulative effect of an asylum applicant’s experiences as opposed to assessing them in isolation, and may not simply state that the past described incidents simply do not rise to the level of persecution.

Although this case does not have binding precedential effect on other cases arising out of the Second Circuit, it sends a message to Immigration Judges that you can’t just say “no” without explaining your answer thereby precluding an asylum applicant from seeking meaningful judicial review of the denial.

Thursday, September 24, 2009

Nonimmigrant Waiver Approved to Overcome Drug Trafficking Finding

Our client is a Canadian citizen. Sixteen years ago she was arrested for attempting to smuggle a hockey bag full of marijuana into the United States . Because of her tender years, and the fact that she had been taken advantage of by a Columbian drug smuggler, she was placed in a Pre-trial Intervention Program and avoided a criminal conviction.

Eight years ago, Immigration Court proceedings were instituted against her because of this incident. After trial, she was allowed to withdraw her application for admission over the objection of the Department of Homeland Security, and as a result, she was not ordered deported from the United States . However, the underlying ground involving illicit drug trafficking remained.

We then applied for a non-immigrant waiver for her, supported by our Legal Brief and various exhibits showing why she was eligible for relief. The waiver has now been granted for multiple entries as a visit for business and pleasure.

Wednesday, September 23, 2009

Common Sense from the BIA

The Board of Immigration Appeals has just issued a new decision that brings some common sense to the issue of deporting someone because they failed to attend a hearing as a result of being in State or Federal custody.

The Immigration Judge ruled that because the individual was arrested and jailed that it was his own fault for being unable to attend his Immigration Court hearing.

The Board looked to clarify the "no fault of their own" language by ruling that:

The conduct underlying an alien’s arrest and incarceration does not constitute “fault” within the meaning of section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a hearing conducted in absentia may be rescinded if the alien was in Federal or State custody at the time of the scheduled hearing and the failure to appear was “through no fault of the alien.”
See Matter of Jean Robert EVRA, 25 I&N Dec. 79 (BIA 2009)

Congrats to Linda Osberg-Braun, Esq., out of Miami, Florida on the win!

Friday, September 18, 2009

9th Circuit Court of Appeals rules that receipt of stolen property is not a crime involving moral turpitude.

The 9th Circuit Court of Appeals on September 17, 2009 in Castillo-Cruz v. Holder reversed an Immigration Judge's finding that receipt of stolen property is a crime of moral turpitude, and questioned whether a petty theft conviction may fall within the petty offense exception.

The Court remanded the case back to the Board of Immigration Appeals (BIA) for the BIA to determine if Castillo-Cruz’s petty theft conviction falls within the petty offenses exception, at 8 U.S.C.§ 1182(a)(2)(A)(ii)(II), and so that it may determine if these convictions standing alone preclude an individual from accruing the requisite time period necessary to establish eligibility for cancellation of removal.

"We affirm the IJ’s determination that Castillo-Cruz’s conviction for petty theft constituted a crime of moral turpitude, but reverse with respect to the receipt of stolen property determination. We further reverse with respect to the IJ’s good moral character determination. Castillo-Cruz’s single conviction for petty theft may fall within the petty offenses exception, see 8 U.S.C. § 1182(a)(2)(ii)(II). If it does, Castillo-Cruz would not be subject to the “stop time” rule of 8 U.S.C. § 1229b(d)(1) precluding him from establishing the requisite period of continuous presence. We therefore remand to the BIA so that it may decide in the first instance whether the petty theft conviction falls within the petty offenses exception, see 8 U.S.C. § 1182(a)(2)(ii)(II), and so that it may resolve any other issues that may exist regarding Castillo-Cruz’s application for cancellation of removal."

Click here to read the Court's decision in its entirety.

Tuesday, September 15, 2009

AILF's Litigation Clearinghouse newsletter, Vol. 4 No. 10.

The American Immigration Law Foundation (AILF), soon to be the "American Immigration Council," has released the most recent edition of their Litigation Clearinghouse newsletter.

The most recent issue includes updates relating to pending E-Verify litigation, class actions against the Government for prolonged detention, summaries of favorable precedent decisions from the Board of Immigration Appeals, removal cases involving the statute of limitation to rescind adjustment, and recently filed AILF briefs.

Click here to view AILF's Litigation Clearinghouse newsletter, Vol. 4 No. 10.

Monday, September 14, 2009

Appeal of Asylum Denial to the Board of Immigration Appeals.

Today I’m working on an appeal of a denial of an application for asylum by the Immigration Court in Buffalo, New York. My client is from Guyana, and is Indo-Guyanese. At trial my client testified that he and his family were attacked at the family home by three Afro-Guyanese on account of their ethnicity and that he was forced flee Guyana as a result of this targeted attack.

For those of you who are unfamiliar with the political climate in Guyana, there is a distinct racial divide between the Indo-Guyanese and Afro-Guyanese which has resulted in a climate of violence in the Country. The Afro-Guyanese are descendants of Africans, and perceive themselves as the true Guyanese believing that they have a greater right to Guyana than the Indo-Guyanese who arrived after them as indentured workers under British colonial rule.

To exacerbate the tension between the two ethnic groups the British made land available to the Indo-Guyanese in the late nineteenth century while denying land ownership to Afro-Guyanese several decades earlier which resulted in the reinforcement of Afro-Guyanese resentment towards the Indo-Guyanese in the colony.

These tensions have remained today in Guyana and the result is that Indo-Guyanese are being singled out by Afro-Guyanese and are suffering physical abuse and violence at the hands of government agents, as well as by individuals.

At trial we submitted the most recent Department of State Country Reports, as well as other available evidence to corroborate my client’s claim that Indo-Guyanese are being targeted by Afro-Guyanese which included evidence that establishes that in Guyana “overt racial hostility” is “getting worse” and that Indo-Guyanese are “targets of attacks” by “Afro-Guyanese militant groups”.

In my brief I am arguing that the Court committed a reversible error of law by denying my client’s application for asylum because it found that my Client testified credibly as to the attack on his family, the record contains evidence that there is a pattern and practice of continuing persecution of Indo-Guyanese in Guyana, and that my client’s fear of return is both subjectively, and objectively reasonable.

Statistically the Immigration Court in Buffalo, New York is one of the most difficult Courts in the United States to obtain a grant of asylum. We have our work cut out for us. Wish me luck.

Thursday, September 10, 2009

Heartbreaking documentary about a man who is losing his family to deportation

TONY & JANINA'S AMERICAN WEDDING- Trailer- Directed by Ruth Leitman from Ruth Leitman on Vimeo.

October 2009 Visa Bulletin: Good News & Bad News

The U.S. Department of State Visa Bulletin for October 2009 has been released, and there is both good news and bad news.

The Good News:

The Employment Based third preference category is now available.

The Bad News:

The bad news is that the wait for the EB3 category goes back to individuals with priority dates in 2001 and 2002.

The Good News:

The Employment Based second preference category moved for both India and China.

The Bad News:

The bad news is that the EB2 category for India only moved 14 days, although China moved 2.5 months.

Click here to view the October 2009 Visa Bulletin.

Wednesday, September 9, 2009

Things are never as simple as they seem on the surface

Today I’m working on a case of an individual who was admitted to the United States in 2003 as an E-2 derivative (Investor Visa). My client was authorized to remain in the United States until April 2005.

Immigration Court proceedings were instituted against her last month by the filing of a Form I-862, Notice to Appear with the Immigration Court. The Department has charged her with overstaying her visa under INA §237(a)(1)(B). My client was released from custody without having to post bond, and is scheduled to appear in Immigration Court later this month to answer the charges of removability.

At first glance this case appears to be of little consequence as my client has been charged with the most minimal immigration violation there is; overstaying her visa. Unfortunately for my client there is trouble beneath the surface.

My client has a series of minor convictions which have not been alleged by the Department when they instituted removal proceedings against her. This is surprising because four years ago she applied for her lawful permanent residency (her Green Card), and this application was denied due to the fact that she failed to provide the Department with a certificate of disposition from the criminal court where she was charged with a criminal violation. The records that were requested by the Department included certificates of conviction relating to criminal charges of simple assault, second degree trespassing, and possession of a controlled substance.

What is of significance is that my client was released from custody on her own recognizance without having to post bond. This is significant because she is most likely subject to the mandatory detention provisions of INA §236(c).

The next question of importance is whether her convictions have any significance from an immigration standpoint. Her assault and trespassing convictions most likely do not render her deportable because they are probably not considered to be crimes involving moral turpitude, but her drug possession conviction is another story.

I need to obtain the certificates of disposition from the criminal courts in question to determine what my client is guilty of, as well as the underlying State statutes to be able to determine the extent of the immigration consequences of her convictions, if any. I’m rolling up my sleeves because there is work to be done.

Tuesday, September 8, 2009

Asylum Case Appealed to the Second Circuit Court of Appeals

My client fled his country with his family because his daughter was kidnapped on Christmas day as a form of intimidation and punishment because of his political activities.

Prior to the kidnapping my client had received threatening anonymous letters demanding that he stop his political activities or he and his family would be punished, and that his daughter would be kidnapped.

On the day of the kidnapping the kidnappers did not leave a ransom note, or make any demands for money. My client’s daughter was released by her captors approximately one week later. The Police never apprehended the kidnappers. The family left because they were afraid that the family was in grave danger because the kidnappers remained at large.

At trial before the Immigration Court in Buffalo, New York, my client credibly testified that the kidnapping was related to his political activities, and that he has concerns that the police were involved with the kidnapping of his daughter. My client expressed his fears that if the family were to return home he and his family may be killed, that there is no part of his country where he and his family could safely reside, and that wherever he would go he would fear for his family’s life.

To corroborate his claim for asylum my client produced the following documentation:

• A copy of a threatening letter indicating that if he did not resign from politics his house would be blown up and his child kidnapped;
• A copy of the Police report he filed relating to the kidnapping;
• A copy of a statement released to the press that the kidnapping was politically motivated and was caused by my client’s political activities;
• A copy of a witness report from the District Attorney’s Office;
• A copy of a hospital report confirming that my client’s daughter suffered psychological trauma as a result of the kidnapping;
• A copy of a police report that indicated that my client’s daughter was kidnapped for political intimidation, and not for economic gain; and
• Affidavits from individuals who were able to corroborate my client’s political activism, and confirm the legitimacy of his fears of returning to his home country.

The application for asylum was denied by the immigration Court because the Judge inexplicably found that my client did not establish a nexus between the kidnapping of his daughter, and his political activities. The Immigration Judge was silent on the issue of credibility. We appealed to the Board of Immigration Appeals.

The Board of Immigration Appeals remanded the case back to the Immigration Court for a specific determination on credibility. Once back before the Court, the Immigration Judge ruled that my client was credible, but again reaffirmed his previous ruling that my client failed to establish a link between the kidnapping and his political activism. We appealed to the Board of Immigration Appeals again.

The Board then explicitly adopted the IJ’s determination that all of my client’s testimony was credible and true, yet affirmed and adopted the IJ’s decision based on my client’s failure to establish a nexus between the kidnapping and his politics.

I have filed a Petition with the Second Circuit Court of Appeals that challenges the legality of the denial of my client’s application for asylum. My brief has been filed, and we have received the Government’s brief in response. We are anxiously awaiting a decision because if we lose this appeal my client will be forced to return to a country where his child was kidnapped, and where the kidnappers remain at large. Wish us luck.

Friday, September 4, 2009

Pushing the Immigration Envelope

I have had back to back days involving some very interesting immigration issues. On Wednesday I was fighting tooth and nail to attempt to save the Green Card of a Citizen of Greece, and yesterday I was tied up with the Newark asylum office that was conducting a credible fear interview on behalf of my client, a citizen of Togo who has been brutally tortured by the Togolese government on account of the expression of his political opinion.

In my case on Wednesday I was wrestling with the issue of whether cancellation of removal as a lawful permanent resident under INA §240A(a) may be utilized to overcome a charge of abandonment of lawful permanent residency so long as the other qualifying factors have been satisfied.

I have been researching the issue, and have yet to find any precedent to support my position that it is available to returning lawful permanent residents who have been charged with abandonment.

To complicate matters, my client has two convictions dating back to the 1980s which render him inadmissible, and which preclude him from applying for cancellation of removal under INA §240A(a), but that do not preclude him from applying for suspension of deportation under former INA § 212(c).

I am attempting to argue that my client remains eligible for both INA §§ 240A(a) and 212(c) because of the Board of Immigration Appeals' ruling in In re Stowers, 22 I&N Dec. 605 (BIA 1999), which states that an alien’s lawful permanent resident status does not cease until the entry of a final administrative order of removal.

My theory is that because my client has a Green Card he should be allowed to apply for forms of relief that require as an essential element the possession of lawful permanent residency so long as he is otherwise eligible unless and until there is a final administrative order of removal stripping him of his lawful permanent residency. This issue is being made for preservation on appeal, because the Immigration Judge I am before will never agree with me.

In my case yesterday, my client fled his native country in the 1980s after being kidnapped, and brutally tortured. He eventually made it to the United States and applied for asylum. His application was referred to an Immigration Judge, but unfortunately my client misread the hearing notice and did not appear as required for his immigration court hearing.

As a result, he pursued a refugee claim in Canada which was ultimately denied, and he was returned to the United States by Canadian immigration on the basis that he was unable to obtain proof that he did not receive lawful status in a third country prior to applying for protection in Canada.

In another cruel twist of fate this proof was obtained shortly after he was removed from Canada. I am hopeful that the third time is a charm, and will keep you posted.

Tuesday, September 1, 2009

Certain Immigrants conveniently omitted from Massachusetts Universal Healthcare Coverage

The New York Times has reported that under the Massachusetts universal health care plan certain lawful permanent residents (Green Card holders) will be singled out and will be charged higher premiums, their health benefits will be sharply curtailed, and they will have to rely on hospitals that provide free emergency care to the poor, despite the fact they will have government provided universal health insurance.

The plan will further restrict the coverage of 31,000 legal immigrants from the benefit of dental coverage, end of life hospice care, or skilled-nursing care. Governor Deval Patrick lauded the new program as "an extraordinary accomplishment".

Teddy Kennedy must be rolling over in his grave.

This is what you call health care rationing. Massachusetts universal health care coverage is a little preview of what life may be like for certain lawful permanent residents should a public option be implemented nationwide. So don't let anyone fool you into thinking that there will not be health care rationing under a nationally implemented "public option", especially when it comes to immigrants. It is inevitable, as proven by the State of Massachusetts.

If the State of Massachusetts can openly discriminate against one group of individuals (legal immigrants) under their State run universal health care plan and have the gall to call the program "an extraordinary accomplishment", it does not take a leap of faith to believe that the Federal Government would also discriminate against legal immigrants should the need arise (i.e., budget shortfalls).

Now I'm not saying that our health care system is perfect. It is far from it, and reform is 100% absolutely necessary. That being said, the answer to the health care question is not more government. What we all can agree on is that health care needs to be affordable, but there has to be a way to make it affordable without requiring the creation of another monolithic government bureaucracy to oversee a public option.

I deal with one of the existing administrative agencies for a living, and guess what; even the President says that the existing administrative agency that oversees our immigration laws is "broken". What makes you think that a government run health care system won't also be just as completely inefficient and ineffective? Bureaucracies, by their very definition are a system of administrations marked by officialism, red tape, and proliferation. Bureaucracies live to feed themselves, not the people. They have never been and will never be the answer.

Now I'm no expert on health care, nor do I play one on TV, but if I were writing health care reform legislation I would address the following key areas.

For starters, the price of prescription drugs needs to be regulated so that people can actually afford their medication.

Secondly, meaningful tort reform must be enacted so that doctors don't feel the need to order 5,000 unnecessary and expensive tests to diagnose a common cold without fear of losing their license.

Third, private employers must be given significant tax incentives for providing their employees with health care coverage. I would rather have a small business person take the money that they already have to pay the government in tax dollars, and have it go towards covering their employees with health insurance. Either way the money is spent, but this way the employer feels good about him/herself, the employees are happy because they have care, and the government ends up saving money because more people are covered by health insurance.

Fourth, make members of Congress pay for their own health insurance. This is more of a symbolic gesture. In most instances our representatives are multi-millionaires, and the taxpayer should not be underwriting a bunch of bloated fat cats in Washington who can afford to pay for their own insurance.

And lastly, and most importantly, real competition must be introduced to enable individuals to purchase health care plans across State lines so that prices come down. Let the free market correct itself through real competition. Let the Progressives, and Geicos of the world have at health insurance, and allow for the scaling of coverage so that a 25 year-old healthy nonsmoker with no preexisting conditions, and no adverse familial history can pay a nominal rate for coverage that will protect them in the event of a catastrophic injury.

And now back to your regularly scheduled immigration blog.