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§ 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a hearing conducted in absentia may be rescinded if the alien was in Federal or State custody at the time of the scheduled hearing and the failure to appear was “through no fault of the alien.”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!

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.

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.

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.

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.

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.