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.
Wednesday, November 4, 2009
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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