Archive | Immigration Court RSS feed for this section

Benach Ragland News

1 May

Raising the barIt has been a busy and exciting few weeks at Benach Ragland.  From immigration reform rallies to dramatic courtroom victories, BR has had a month to remember.

Starting off, courtroom victories are the reason we do what we do.  Three major courtroom victories this month have lifted everyone’s spirits.  First, Andres Benach presented seven hours of testimony and 747 pages of documentary evidence to the immigration court in Pennsylvania over two days in winning a 212(h) waiver for a permanent resident convicted of an aggravated felony.  Legally, this victory was only made possible as Circuit Courts around the country, including the one in Pennsylvania, have decided that the plain language of  INA 212(h) allows certain permanent residents convicted of aggravated felonies to seek the waiver.  This was an unheard of notion about five years ago when the U.S. Circuit Court of Appeals for the Fifth Circuit in Texas decided the case of Martinez v. Mukasey that opened this door.  At the time, we told our client that his only hope was that the logic of Martinez would also be accepted in the Third Circuit, where he was facing removal proceedings.  In September, a decision called Hanif v. Attorney General did just that and we were able to put on the case.  Overcoming the aggravated felony, showing the Judge that the family would suffer extreme hardship without the husband/ father and demonstrating that our client deserved this second chance took every bit of energy and evidence we could muster.  When the Judge finally ruled, the entire family broke down in tears relieved that the threat of deportation had been eliminated. Second, Dree Collopy wrapped up a long and emotional saga when her client was granted adjustment of status without a whisper of opposition from DHS.  After years of fighting DHS on the case, Dree overwhelmed the government with evidence and reason, such that DHS agreed to her client’s adjustment.  Dree’s client, Sophie, is BR’s May 2013 Client of the Month and you can read more about her here.  Finally, Thomas Ragland was hired on Thursday, worked all weekend, and destroyed the government’s case on Tuesday.  A case that had lasted for several years where the government insisted that the client had committed fraud, when she had not, was wrapped up with a burst of activity from Thomas and Senior Paralegal Cyndy Ramirez, who with bulldog tenacity unraveled the truth of the case and set up the victory in court.  These cases represent the best of why we do what we do.  People’s lives are changed for the better and the emotional release of knowing that the immigration Sword of Damocles has been removed is a feeling every lawyer should get to know.  But, be careful, that feeling is highly addictive.

It is no wonder, with cases like these, that Andres Benach, Thomas Ragland and Dree Collopy were all recognized as Super Lawyers for 2013.  Every year, Thompson Reuters produces its Super Lawyers list and BR lawyers have been a regular fixture on the Super Lawyers list.  Joining Andres and Thomas this year, Dree Collopy was named a “Rising Star.”  We think that Dree is already a star and that it just takes some longer to recognize it.

At the same time, BR served the community.  BR’s goodwill ambassadors Sandra Arboleda, Mariela Sanchez and Liana Montecinos supported the April 10 immigration rally and BR was the only law firm to attend the Maryland Council for American-Islamic Relations awards dinner on Sunday, April 28.  BR even received a shout-out from Imam Johari from the Dar-el-Hijra mosque for our work on a naturalization case for one of their congregants.  Also, last night (April 30), Benach Ragland was honored as a Platinum Member of the DC Bar’s Raising the Bar effort to support access to justice programs.  Jen Cook, who has spearheaded this effort at BR, was on hand to receive the award, which was bestowed by Georgetown Law School Dean Peter Edelman who noted that Jen was once a student of his.

Lastly, BR attorneys have criss-crossed the country educating lawyers on the challenges of immigration law.  Thomas Ragland addressed the Upper Midwest Chapter of the American Immigration Lawyers Association.  Andres Benach went to Chicago to discuss the obligations of defense counsel in advising their foreign born clients on the immigration consequences of conviction with lawyers from the American Bar Association Section of Litigation and will speak tomorrow on Provisional Waivers and also Prosecutorial Discretion at the National Immigration Project’s annual conference in Boston.

Spring certainly has been busy and gratifying at Benach Ragland.  May looks no different with challenging cases looming.  Benach Ragland law clerk Prerna Lal will graduate from law school, marking another step towards joining BR as a lawyer after the Bar exam.  It is all exciting and we are loving every minute of it.

Tags:

Did Moncrieffe Kill Two Birds With One Stone?

24 Apr

Official Portrait of Justice Sonia Sotomayor

The Supreme Court’s decision in Moncrieffe v. Holder represents a big win for those—like us—who believe lawfully present immigrants should not be deported for relatively minor drug offenses. The question now is: how big?

In a 7-2 decision written by Justice Sotomayor, the Court held that a marijuana distribution conviction should not be considered an “aggravated felony” under the immigration laws unless court records demonstrate that the offense involved payment or more than a small amount of marijuana. Yet in so doing, the court appears to suggest that immigrants should always receive the benefit of the doubt if court records fail to indicate whether they were convicted of an “aggravated felony,” even when they are applying for relief from removal. If so, the decision would effectively resolve a question that was distinct from, but related to, the one before the Justices.

Some background: For immigrants in removal proceedings, having an “aggravated felony” conviction carries two distinct consequences. First, it makes them removable from the United States (i.e. subject to deportation). Second, it makes them ineligible for most discretionary forms of relief—including asylum and cancellation—that would allow them to lawfully remain in the country notwithstanding the conviction. Under the Immigration and Nationality Act, the government carries the burden of demonstrating that an immigrant is removable, while immigrants carry the burden of demonstrating they are eligible for relief. Thus, in holding that Mr. Moncrieffe was not convicted of an aggravated felony for purposes of removability, the Supreme Court could have left open whether he would have to affirmatively show he was not convicted of such a crime to qualify for relief from removal.

Fortunately, Justice Sotomayor’s decision appears to kill two birds with one stone, suggesting that a conviction cannot be considered an aggravated felony for purposes of removability or relief unless clearly established by the record of conviction. How do we know? For one thing, the opinion repeatedly implies that the inquiry into whether an immigrant was convicted of an “aggravated felony” should be one in the same for purposes of removability and relief—even saying in footnote 4 that its analysis is “the same in both contexts.” For another, the majority specifically says (on page 19) that an immigrant like Mr. Moncrieffe “may seek relief from removal such as asylum or cancellation of removal”—and, as importantly, that Immigration Judges could deny relief as a matter of discretion if additional facts surfaced to suggest the immigrant was a legitimate drug trafficker.

If this interpretation of Moncrieffe is correct, it would mean that numerous federal circuit courts now wrongly require immigrants to affirmatively demonstrate they have not been convicted of an aggravated felony to obtain relief from removal. By making immigrants prove a negative, these decisions (such as Young v. Holder in the Ninth Circuit, and Salem v. Holder in the Fourth Circuit) have the same practical effect as the position the Supreme Court has now rejected: denying relief from removal to otherwise qualified immigrants simply because their conviction records do not specify the surrounding circumstances of their offense. We hope government attorneys will read Moncrieffe the same way. You can be sure, however, that Benach Ragland will raise this argument and continue to litigate the issue until the Supreme Court makes explicit what Moncrieffe makes implicit.

Benach Ragland Submits Brief in Mandatory Detention Case

21 Feb

Earlier this month, Benach Ragland authored a brief on behalf of the American Immigration Lawyers Association in the case of Michael Sylvain v. Attorney General before the U.S. Court of Appeals for the Third Circuit.  In Sylvain, the court must decide whether the Immigration & Nationality Act (INA) requires the detention of individuals convicted of certain offenses regardless of how long it has been since they were released from criminal custody. On behalf of AILA, Benach Ragland argued to the court that people released from custody prior to Immigration & Customs Enforcement’s (ICE) assumption of custody are entitled to a bond hearing where an immigration judge can make a determination as to whether they are flight risks or dangers to the community.  ICE argues that the INA gives immigration judges no authority to consider the release such individuals and that they must be detained for the duration of their removal proceedings regardless of how long it has been since they were convicted of an offense.

In Sylvain, the government defends a decision by the Board of Immigration Appeals (BIA) in Matter of Rojas.  In Rojas, the BIA decided that the mandatory detention provisions of the INA require detention without possibility of release on bond regardless of when that person was released from criminal custody.  However, the INA mandatory detention provision states that certain individuals shall be taken into custody “when the alien is released.”  The BIA decided in Rojas that that language did not limit ICE to apply mandatory detention to individuals regardless of when they were released.  Under Rojas, an individual would be subject to detention without any sort of review by a judge even if they had been released from prison a decade earlier.  As immigration judges around the country cited Rojas and explained that their hands were tied, advocates went to U.S. District Courts around the country and sought habeas corpus review.  Almost uniformly, the federal courts told the immigration service that Rojas was wrong and that the detained individual was entitled to a bond hearing.  The immigrant was then released.   ICE rarely appealed these decisions to the courts of appeals.

However, they did so in Hosh v. Lucero.  In that case, a district court judge found that Rojas was wrongly decided and ordered an immigration judge to hold a bond hearing.  However, this time, the government, sensing a possibly friendly court in the Court of Appeals for the 4th Circuit, a court known for giving the government wide berth to operate, appealed the judge’s decision.  The government’s gamble paid off and the Court of Appeals for the Fourth Circuit reversed the district court judge and deferred to the BIA’s decision in Rojas, foreclosing habeas relief in the states of the 4th Circuit (Maryland, Virginia, North Carolina, South Carolina and West Virginia).  Although district courts in the Fourth Circuit must follow Hosh, district courts outside of the Fourth Circuit have not found Hosh terribly persuasive.

Now this issue is before the Third Circuit Court of Appeals, which encompasses New Jersey, Pennsylvania and Delaware, in Sylvain.  A decision rejecting Rojas would create a split between the Third and the Fourth Circuits, possibly leading the way to Supreme Court review.  Oral argument is coming next month and we will report from the argument and when a decision comes down.

Tags: , , , , ,

Why Immigration Reform Must Also Avoid the Mistakes of 1996

6 Feb

Capitol

Those following Tuesday’s hearing before the House Judiciary Committee could be forgiven for thinking the sole cause of our country’s immigration problems was the Immigration Reform and Control Act of 1986 (“IRCA”), the landmark bill that created a pathway to citizenship for roughly three million undocumented immigrants. Time and again, Republican committee members faulted the legislation for not only being too soft on enforcement, but creating a supposed magnet for future unauthorized immigration.

In truth, while the 1986 law was indeed flawed (more on that below), a far more disastrous piece of legislation was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Part of the GOP’s 1994 Contract with America and signed by President Clinton just weeks before his re-election, the measure sought to “get tough” on immigrants by eliminating common forms of relief from removal, permitting deportation without a hearing before a judge in many cases, and imposing draconian penalties on any noncitizen who was unlawfully present for more than six months.

Yet far from occasioning a reduction in the illegal immigration, the 1996 Act was followed by a rapid rise in the country’s undocumented population. Indeed, while precise numbers are impossible to calculate, a substantial percentage of today’s undocumented immigrants would possess legal status if not for IIRIRA. In weighing various proposals for immigration reform, federal lawmakers would thus be wise to avoid the mistakes of 1996 in addition to those of 1986.

Bars for “unlawful presence”

In hopes of deterring immigrants from illegally entering or remaining in the country, the 1996 Act created the so-called “unlawful presence” bars. Under these provisions, all noncitizens who were unlawfully present for more than six months became inadmissible for three years as soon they departed the United States. Similarly, noncitizens who were unlawfully present for more than a year became inadmissible for ten years upon leaving the country.

Yet rather than dissuade noncitizens from remaining illegally in the country, the law had largely the opposite effect. Caught in a cruel Catch-22, many undocumented immigrants who were legally eligible for permanent residence chose not to pick up a visa in their home countries for fear of triggering the bars. While Congress allowed such noncitizens to obtain waivers in cases of “extreme hardship,” applicants were—until the recent creation of a provisional waiver by the Obama administration—required to apply for such waivers from abroad, leaving them stranded for ten years if their applications were denied.

Reinstatement of removal

In hopes of deterring previously deported immigrants from illegally re-entering the country, the 1996 Act created a new process known as “reinstatement” of removal. The provision gave immigration authorities the ability to remove any immigrant who illegally re-entered the country without a hearing before an immigration judge—regardless of whether the individual had subsequently become eligible for a green card, asylum, or any other form of immigration relief. (The reinstatement process also explains how Maria Arreola, the mother of DREAMer Erika Andiola, was en route to Mexico less than 24 hours after being arrested by ICE.)

By any measure, the reinstatement provision has dissuaded few deported immigrants from illegally re-entering the country. According to the Department of Homeland Security, the number of reinstated removal orders has increased almost every year over the past decade, and accounted for a record 130,000 or the nearly 400,000 removals that occurred in fiscal 2011. The reinstatement provision has also prevented countless immigrants from obtaining forms of immigration relief for which they subsequently became eligible, including permanent residence based on a marriage to a U.S. citizen. Thus, rather than deter deported immigrants from illegally re-entering the country, the principal effect of the reinstatement provision has simply been to drive such noncitizens further underground.

Elimination of suspension of deportation

A further (but not final) flaw of the 1996 Act was the elimination of a common form of relief from removal known as “suspension of deportation.” Prior to IIRIRA, undocumented immigrants placed in deportation proceedings could avoid removal by demonstrating that they possessed good moral character; that they were continuously present in the United States for at least seven years; and that their removal would could extreme hardship to themselves or a spouse, parent, or child that was U.S. citizen or permanent resident.

In 1996, Congress eliminated this provision from the INA and replaced it a form of relief called “cancellation of removal.” Under this new provision, undocumented immigrants could only qualify for relief by showing, among other things, that they were continuously present for the previous ten years, and that their removal would cause the much higher standard of “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident spouse, parent, or child—but not to themselves.

As with the other punitive provisions mentioned above, the elimination of suspension dissuaded few if any noncitizens from entering the country illegally. To the contrary, abolishing the provision has likely encouraged many undocumented immigrants who would have previously qualified for relief to stay in the shadows. Indeed, it’s entirely possible that if suspension of deportation still existed, ICE would have had no need to conduct a nationwide review of more than 300,000 pending removal proceedings for cases meriting favorable exercises of prosecutorial discretion.

*****

Of course, none of this is to say the 1986 Act shares no responsibility for our current immigration problems. It does. However, the key drawback of the 1986 bill was not that it was too “soft” on immigration enforcement, but that it failed to allocate a sufficient number of visas to meet the rising demand for immigrant workers. Indeed, even if the current Congress provides a pathway to citizenship for all 11 million undocumented immigrants, nothing will be solved without modernizing the immigration system to accommodate current and future demand.

Taken together, the lessons of the immigration laws passed in 1986 and 1996 are clear. Without a system that accommodates market demand for immigrant workers, many noncitizens will feel no choice but to enter the country illegally. And without a practical way to obtain green cards for which they are legally eligible, undocumented immigrants are more likely to be trapped inside the country (or driven further into the shadows) as a result of punitive immigration laws than dissuaded from illegally entering or remaining in the first place.

Does President Obama want to drop the one year asylum rule?

1 Feb

 

There is a single line in the President’s immigration proposal that has escaped a lot of attention.  As the idiotic “back of the line” concept and the path to citizenship dominate the headlines, the language of the proposal indicates that the administration would like to eliminate one of the most onerous obstacles to asylum for thousands of applicants- the notorious one year rule.  If this became law, the President will preside over a vast improvement in U.S. refugee and asylum law through a procedural change that will make thousands of people eligible for asylum.

At the very end of the President’s proposal, the administration writes that the proposal “better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.”  To us, this can only be referring to the one-year rule for applying for asylum.  The one year rule requires an individual to apply for asylum within one year of the date of admission in order to qualify for asylum.  While there are regulatory exceptions to the one year rule, these are stringently applied and many people who have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, political opinion or membership in a particular social group have been unable to receive the protection of asylum.

The one year rule has been disastrous for many people who have fled harm.  It is applied regardless as to whether the applicant knew of the rule and generally fails to take account of all but the most serious forms of post traumatic stress disorder.  In addition, it discourages many people from seeking asylum when they do not believe that they can meet one of the exceptions to the one year rule.  It has also made a mess of the immigration courts.  Here is how it works in practice.  An individual in the U.S. for over a year applies for asylum with the U.S. Citizenship & Immigration Service.  The asylum office can not grant the application unless the applicant can establish that he qualifies for one of the exceptions.  If the asylum office denies the application for asylum, they place the applicant into removal proceedings.  (Of course, the asylum office calls this the much nicer, yet misleading “being referred to the immigration judge”)  An immigration judge then may review the application for asylum.  If the judge decides that a person is ineligible due to the one year rule, the judge must consider whether it is more likely than not that the applicant will be persecuted or tortured.  Under such circumstances, a judge can enter an order of removal but withhold removal to the country of persecution or torture.  So, the government is allowed to deport such an individual, just not to that individual’s home country.  Realistically, there is no other country where the individual may be deported to, so the individual is allowed to remain in the U.S. with work authorization, often being required to report to ICE, but never being able to travel or get a green card.  So, individuals who fail to apply for asylum within one year of the date of entry are provided with the same form of humanitarian protection as people convicted of “particularly serious crimes” or who have participated in the persecution of others.  Clearly, these are not equivalent infractions, yet the result in the same.

The profusion of asylum cases that can only become withholding or torture cases due to the rigid interpretation of the one year rule has contributed to the immense backlogs in immigration courts.  Since the asylum office must refer every single one year rule case to the court, many cases that should be resolved at the asylum office now wind up in court.  And why?  Because they did not apply at the first instance possible?  The one year rule reflects an erroneous belief that a person who truly fears persecution will apply immediately upon arrival and that failure to do so is an indicator of fraud.  The one year rule reflects Congress’ lack of faith in the asylum officer and immigration judges who try thousands of cases every year.  An asylum officer or immigration judge is almost always able to tell between someone opportunistically and cynically seeking asylum improperly as opposed to a legitimate asylum seeker, regardless of when they filed.

Immigration reform that gets rid of the one year rule and lets the asylum officer and immigration judges do their job would be a tremendous improvement in asylum law and we hope that this little-noticed provision makes it into any final bill.

Tags: , , , , , , , , , ,

The Provisional Waiver and Removal Proceedings

17 Jan

 

Over the last few weeks we have answered dozens of questions about the provisional waiver.  One group of questions keeps appearing- questions about how people in removal proceedings or with a removal order can qualify for the provisional waiver.  Whereas, the initial rule announced by the Department of Homeland Security indicated that the provisional waiver would be unavailable to people in removal proceedings, the final rule is somewhat more forgiving.  The final rule states that an individual in removal proceedings can not seek a provisional waiver with the Citizenship & Immigration Service (CIS) unless proceedings have been administratively closed or terminated.

brockes-600

As Julie Andrews sang, let’s start at the very beginning as it is a very good place to start.  Removal proceedings are initiated when the DHS issues a charging document known as a Notice to Appear (NTA) and lodges it with the Immigration Court.  Any of the three immigration agencies, Immigration & Customs Enforcement, Citizenship & Immigration Services and Customs & Border Protection has the authority to issue NTAs.  Usually, the time between DHS issuing an NTA and filing it with the court is close to simultaneous.  However, on occasion, the NTA is issued and not filed with the court for days, weeks, months or even years.  An individual is not “in removal proceedings” until an NTA has been filed with the court.  Until the NTA is filed with the court, DHS has exclusive authority to choose not to bring removal proceedings against an individual.  In cases where an NTA has been issued and not filed with the court, that individual is not in removal proceedings and should remain eligible for the provisional waiver.  Removal proceedings continue until the immigration judge grants relief and terminates the case or the person departs the U.S. either under an order of voluntary departure or an order of removal.  In cases where there is a final order of removal, but the individual has not been removed yet, even though there are no more proceedings before the court, that individual is still “in proceedings” and would be ineligible for the provisional waiver.

Once a person is in removal proceedings, the provisional waiver rule is clear that those proceedings must be administratively closed or terminated before that individual can seek the provisional waiver.  Termination of removal proceedings can happen in one of two ways.  First, proceedings are terminated where the immigration judge grants relief, allowing an individual to remain in the U.S. in some sort of legal status.  Second, and this is the rarer form of termination, ICE may elect to terminate proceedings because it has decided that seeking removal in a particular case is no longer in the interests of the government.  Although the DHS has exclusive authority to issue and to decide whether to file a Notice to Appear in immigration court,  once proceedings have been initiated, DHS becomes a party to litigation and only the immigration judge has the authority to terminate removal proceedings.

Administrative closure is a tool of convenience for immigration courts.  Administrative closure allows the court to take a case off an active docket and place it into “hibernation.”

clipart_sleepingbearBy administratively closing a case, the case remains pending before the immigration court, but it is taken off the active calendar.  When a case is pending before the court, it is on an active calendar and at the end of each hearing another hearing must be calendared.  When a case has been administratively closed, it is not on any calendar and no hearings are scheduled.  The case remains before the court, but the court is not acting on the case.  In order to get the case back on the active docket, one of the parties must file a “motion to recalendar” the case.  Cases can be administratively closed for months or years at a time.  Either party may request administrative closure and the immigration judge has authority to grant it.  Until recently, the law required the concurrence of both the foreign national and the government to allow for administrative closure.  However, last year, in Matter of Avetisyan, the Board of Immigration Appeals held that an immigration judge may grant administrative closure over the objection of one of the parties.  In other words, DHS can not unilaterally deny the foreign national’s  ability to obtain administrative closure.

People currently in removal proceedings who would otherwise qualify for the provisional waiver can seek both termination and administrative closure.  We expect that ICE, who represents the government in removal proceedings, will be fairly accommodating to requests to terminate or administratively close cases where the foreign national can present a prima facie case for eligibility for the provisional waiver.  In these cases, your lawyer ought to prepare a motion to terminate or administratively close demonstrating that you qualify for the provisional waiver and that the pending removal proceedings are the only impediment.  These individuals should be able to demonstrate that they are the spouse, parent or children of a U.S. citizen and that their only violation of law relates to entering illegally.  By presenting evidence to the government of qualification for the provisional waiver and readiness to file it, it seems that ICE would exercise its discretion to administratively close the case to allow the applicant to file the provisional waiver application.  Upon approval, termination seems appropriate.  If the case is not approved, it is reasonable to expect that ICE would seek to recalendar the case and proceed with removal proceedings.  Should the government refuse to join a motion for administrative closure, the immigration judge has the authority under Matter of Avetisyan to close the case nonetheless upon the motion of the foreign national.

People with old orders of removal who have not yet departed the United States would need to reopen removal proceedings so that removal proceedings can be administratively closed or terminated.  This is a heavy lift.  If the removal order is more than 90 days old, a foreign national will, generally, need the government to agree to reopen for the purpose of closing.  Makes sense, right?  However, there may be circumstances where the hardship is so clear and extreme and the facts are so compelling that the government agrees to this.  By asking the government to join a motion to reopen, an individual with a final order of removal, who may or may not be on the government’s radar screen for removal, makes herself vulnerable to enforcement of the removal order should the government prove unwilling to join in reopening.  While there are limited circumstances in which an immigration judge can reopen on his own motion, those instances are rare and should not be, generally, relied upon.

Finally, people who have been deported or departed the U.S. under an order of voluntary departure or removal are ineligible for the provisional waiver and must seek the waiver through the traditional means at the consulate in their home country.

The provisional waiver has the potential to help thousands of people in removal proceedings.  Many of them may be waiting for hearings on cancellation of removal which requires a much higher level of hardship than the provisional waiver’s standard of extreme hardship.  It is not really conceivable that anyone can navigate this thicket without experienced counsel.  Visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association to find qualified attorneys to assist you.

 

Tags: , , , , , , , , , ,

Indifference

13 Dec

 

It is very true that the immigration laws need a wholesale revision.  Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming.  But another change is needed and this change may the hardest of all.  It is a change of attitude within the agencies.  We have written in this space on multiple occasions about the hostility that elements within ICE have for their political leadership and the “culture of no” within CIS has been well-documented.  However, less reported is the blase indifference that many civil servants within the agency take toward the people affected by the way they go about their jobs.

Here is where I am supposed to say that the majority of the people who work for the immigration agencies are hard-working, well-intentioned people laboring under tremendous workloads and inadequate resources.  I am supposed to say that those who are indifferent to the human lives in the case before them are far outnumbered by the valiant majority who struggle against the bureaucratic odds to make a difference.  Sorry, but I can not say that.  I have to say that indifference is the default and care and compassion and vigor are the exception.  Such virtues do exist within the immigration agencies, but they are rarely on display.  Initiative and “going the extra mile” are snuffed out like weeds in those Round-Up commercials.  The overwhelming majority simply have little concern for the people affected by the way they do their jobs.  Immigration reform will be incomplete unless it addresses this problem as the power of clerks and administrative staff to harm the interests of immigrants remains immense.

Let’s focus on the Executive Office for Immigration Review (EOIR), the Immigration Court system.  Here are just a couple of things that have happened to us in the past few months that show how bureaucrats affect people’s lives by the way they do their jobs:

  • Client was detained by ICE.  ICE said that he was subject to mandatory detention.  We wanted to argue to the Judge that he was not.  We filed a request for a bond hearing, which is a matter of right, on October 24.  The case was not scheduled until November 27, five weeks after we filed.  This meant that our client had to sit in jail for an additional five weeks after we asked for his release before a judge could consider his claim that he should not be detained.  Five weeks is a long time to sit in jail when the law says you do not have to sit in jail.  The decision on when to give him a hearing was made by the Immigration Judge’s legal assistant.  No doubt she was reacting to limits on how many cases a judge can hear on any given day, but the harm of the judge hearing one more case against an individual spending several weeks in jail ought to be considered.
  • Client was detained by ICE.  When ICE detains an individual that they are placing into removal proceedings, ICE must issue a Notice to Appear (NTA) charging the individual with removability.  ICE must file the NTA with the Immigration Court and the Court must schedule the hearing.  We requested bond.  Although the rules require the Court to schedule a bond hearing for any detained individual regardless of whether an NTA has been filed, the Court’s backlog in recording the filing of NTAs causes the staff to fail to schedule a bond hearing.  A hearing was finally scheduled 30 days after the client is taken into custody and the Judge orders release.
  • Client was scheduled for hearing on her application for cancellation of removal for 10/31/2012.  That hearing was set in December 2011.  Hurricane Sandy closed the Immigration Court that day and for several days afterwards.  Expecting that the court would reschedule the case once it reopened, we wished to inform the court that we did not need much time for a hearing.  In December 2011, the Court scheduled the case for three to four hours of time.  However, since then, we negotiated with ICE counsel and agreed that all issues in the case could be resolved in a hearing of an hour or less.  On November 15, 2012, we filed a motion letting the court know that we did not need much time, so that the Court could squeeze us in wherever it had time.  We made several calls to and left messages with the court’s clerical staff, none of which were returned.  We finally spoke with the legal assistant to the judge around December 1, who stated that she had not seen the motion and she would have to look for it, but that she was not going to stop what she was doing to do so.  If she found it and the Judge ruled on it, she would give us a courtesy call.  On December 4, 2012, we got the call- hearing on December 11!  However, on December 5, the rumors started flying- the cap on grants of cancellation of removal had been met and no cancellation grants could be made until October 1, 2013.  As these were just rumors, we went ahead with the hearing, traveling to another city to be there on December 11.  At the hearing the Judge informed us that, since there were no cancellation numbers, she could not and would not hold a hearing and we could come back in October 2013.  So many small acts of initiative could have made a difference here: (1) the clerk could have addressed the motion in a timely manner and we could have gotten on the calendar before  numbers ran out; (2) when numbers ran out, the court could have called and rescheduled knowing that we would have to travel to attend the hearing at substantial cost to the client.
  • They never call back.  Never.

These are problems that are not going to be addressed by legislation.  They require a wholesale change in attitude and a lesson in courtesy. This is not simply a problem of
“poor customer service.” I hate the idea of customer service in a government agency. I think they owe us MORE than a business owes its customers. We are citizens, we are a polity and they are our government. They derive their authority from us. A business derives its income from us, which it can choose to accept or not. Citizen vis-a-vis government is entitled to more respect and deference than a Slurpee-buying sap at a Seven-Eleven.  Homer_and_Apu

These problems require an understanding that immigration detention is a serious deprivation of liberty that must be limited in duration and for the most serious matters.  A culture must grow within the Immigration Court that anything that unnecessarily prolongs detention is to be avoided and that resources will be provided to ensure that immigrants have access to prompt hearings.  Employees of the court system must be trained to recognize that they should do all they can to ensure that detained individuals have access to process.  A person is charged with murder is put in front of a magistrate judge within 24 hours who sets bail (or not).  A person charged with overstaying a visa is often detained for weeks before he gets review of his detention.  How does that system make sense?

This post was mostly cathartic.  Future posts will explore some of the legal underpinnings of the immigration detention regime.  For example, a U.S. Supreme Court decision many years ago said that removal proceedings are civil and not criminal and many criminal procedural protections are, therefore, unavailable in removal proceedings.  Given the militarization of the border and the use of detention during removal proceedings, we wonder how much of that flawed doctrine still can stand.

Tags: , , , , , ,

What?? I’ve Got Another Cap to Worry About? Cancellation Numbers Dry Up.

7 Dec

The rumors flew wildly on Wednesday.  The cap has been reached!  No, not that cap.  The H-1B cap of 65,000 visas for FY 2013, which began on October 1, 2012, was reached in June 2012.  No new H-1B visas would be available until October 2013, the beginning of FY 2014.  But anyway, this is not about the H-1B cap.  Turns out there is another cap.  There is a cap on the number of people who can be granted cancellation of removal in any given fiscal year.  That cap is 4,000 people.  Per year.  Nationwide.  Immigration Judges have the authority to cancel the removal of 4,000 nonresidents who meet the criteria for cancellation of removal.  Apparently that cap was reached on Wednesday, December 5.  Last year, it was not reached until February.    In order to qualify for cancellation of removal, an individual must:

  • have continuously resided in the U.S. for at least ten years
  • possess good moral character
  • demonstrate that her removal would cause “exceptional and extremely unusually hardship” to a U.S. citizen or permanent resident spouse, parent or child.

It’s a pretty steep burden.  Many immigration judges have interpreted the exceptional and extremely unusual hardship standard to require a very overwhelming and unconscionable level of hardship.  Cancellation cases require reams of documentation and hours of witness preparation and testimony.  The government usually fights cancellation cases and a win is a big accomplishment.  Yet, cancellation is often the only form of relief available to many individuals in removal proceedings.  Take, for example, an individual who entered the U.S. without inspection from Mexico in 1998, who married another Mexican national and had two children while in the U.S.  During his time in the U.S., he has worked and paid taxes and has no criminal record.  If that individual wound up in removal proceedings, he could apply for cancellation of removal and argue that his removal would cause exceptional and extremely unusual hardship to his U.S. citizen children.  His life, his contributions to our society and the needs of his children would be the subject of a real inquiry by an immigration judge.  Due to the numbers of people in removal proceedings, the backlogs in the immigration courts, and the practice of ICE in fighting cancellation cases tooth and nail, this individual can expect to have his cancellation application heard in several years.

Now, it seems, an applicant also has to win the calendar lottery.  Cancellation numbers become available on October 1, and, if the rumors are true, and I have little doubt that they are, they were gone by December 5. This means that no one can be granted cancellation of removal again until October 2013.  This is not to say that people who have hearings between now and October will be denied.  It simply means that they can not get decisions.  It means months of uncertainty and instability for them and their families.  It means greater backlogs in  the immigration courts as cases can not be completed.  For example, I expected to have a client granted cancellation of removal next Tuesday.  What she will get is a wink and nudge that she will get cancellation in October.  Until then, young lady, please make do and do your best to complete your education.

Some may argue that the number of cancellation grants allowed in any year indicates the number of individuals Congress believed should be able to demonstrate the level of hardship necessary to be granted cancellation of removal and that judges are being too lenient and generous in giving out cancellation. That may be true.  The Congress that created cancellation and imposed the cap, the 1996 Contract with America Congress, was not known for its generosity towards immigrants.  But Congress legislates in the abstract.  Judges deal with the real and the person sitting in their courtroom and their children and their dreams and their accomplishments and must make decisions that affect people’s lives.  The Immigration Judges of the country are sending a loud and clear message to Congress- the cancellation limit should be eliminated and, if not, raised substantially.

Tags: , , ,

Meet Jennifer Cook

26 Oct

 

Jennifer Cook is one of the founding partners of Benach Ragland.  In fact, the firm was nearly Benach, Ragland & Cook, but we decided that law firms these days were going for shorter names, like Duane Morris or Dewey LeBoeuf (Wait, not that one!)  Plus, Jen, unlike the other founding partners, does not have a monstrous ego that requires constant feeding.  But make no mistake, Jen is essential to this firms’ operation and activities.  Jen’s organization, thoroughness and commitment to creative and zealous representation and client service keep us all on track and our clients’ needs at the forefront.  And, as a former environmental lawyer, Jen not only organizes our practice, she also multitasks by being in charge of our extensive recycling program at BR.

Other than a spell (6 year spell!) of California fever, Jen has made Washington her home since she came to Georgetown as an undergraduate.  A devoted Hoya, she attended Georgetown law.  Before dedicating herself full-time to immigration law a few years ago, Jen spent a decade at Duane Morris in the environment and energy practice.  Doing this work, Jen learned the ins and outs of federal agencies.  She dealt with them on administrative matters and sued them to protect her clients’ rights.  Sounds a lot like what we do.  Her experience makes her a savvy and skilled advocate who can find her way around a labyrinthine statute and agency.  Getting warmer to immigration!  However, Jen, a warm and outgoing person, missed the human element in her work.  Representing utilities and trusts is not the same as representing nannies, laborers, and families.  In immigration law, success is measured in dreams achieved: the ability of a family to stay together, an education for a farmworker’s daughter, freedom of expression and to be who you are.  It is manifested in hugs, tears of relief, jerk chicken, Diwali sweets, and spicy enchiladas.  After finding that Thomas Ragland and Andres Benach needed help with some of their work while at Duane Morris, Jen threw herself into immigration law, with characteristic gusto and doggedness.  Pretty soon, Jen was driving to see clients in immigration detention, attending immigration interviews and haggling with judges over bond.

Jen took to immigration like a fish to water.  She presented a demeanor that clients knew that they could trust.  In one of her first cases, she was able to gain the trust of a Ugandan client to tell her that he was gay.  He was in his thirties and had told no one of his sexual orientation.  Jen helped him to gain the strength to make this admission to his conservative family.  His admission saved his life as he was able to seek protection from deportation on account of the horrendous treatment of homosexuals in Uganda.  If it were not for Jen’s perceptive questioning and her warm and approachable demeanor, he may have carried that secret to an early grave.  Jen also did the heavy lifting in our federal court naturalization case, Abusamhadaneh v. Taylor in which a federal judge in a 90 page decision found that the government was wrong to find that our client lacked good moral character.  While Thomas Ragland and Denyse Sabagh were in the spotlight, Jen did the hard work of reviewing the materials, digging through the record, and finding the facts that led the client to victory.

A marathoner, Jen knows about endurance, pacing herself and keeping at a goal that may seem far out of sight.  Jen takes inspiration from the travails of our clients.  Immigrants take risks by leaving their country and embarking on a dangerous journey for the hope of a better life.  Jen left a comfortable practice and took a risk by starting a new venture in the hope of a life with more meaning and deeper human connection.  All of us at Benach Ragland are enriched because she did, as is our clientele.

 

Aggfel & CIMT Victory in Arlington Immigration Court

22 Oct

We prevailed in a long-fought case this week in the Arlington Immigration Court. The Immigration Judge granted our motion to terminate proceedings, agreeing that our client’s conviction in Virginia for attempted sexual battery was neither an aggravated felony nor a crime involving moral turpitude (CIMT), and that he is not deportable as result of the offense. (IJ Decision – redacted.) But that’s hardly the entire story …

In September 2008, our client Y— pled guilty and was convicted of attempted sexual battery in violation of Va. Code §18.2-67.5(c), sentenced to 11 months imprisonment (all suspended), plus 1 year of supervised probation. In March 2010, he was arrested by ICE and sent to Hampton Roads Regional Jail. DHS charged him with (1) aggravated felony “sexual abuse of a minor” and (2) CIMT within 5 years of admission. He appeared for four consecutive master calendar hearings, during which the government sought to introduce new evidence and just delayed the proceedings, before the family hired us the day before the fifth MCH. We stayed up late preparing a lengthy motion for bond redetermination, arguing that his offense did not qualify as an aggravated felony, thus he wasn’t subject to mandatory detention and should be released on bond, and we filed and argued it the next day. The IJ agreed, rejected the aggfel charge, conducted a bond hearing, and ordered Y— released on $10K bond. The very next day, DHS not only appealed the IJ’s bond order, it also invoked the “automatic stay” under 8 C.F.R. §1003.19(i)(2) in order to prevent our client from bonding out of ICE custody.

Certain that Y— was not subject to mandatory detention, we promptly filed a writ of habeas corpus in the US District Court for the Eastern District of Virginia, challenging our client’s continued custody under the automatic stay provision. We argued that 8 C.F.R. §1003.19(i)(2) is ultra vires to the statute, because it grants DHS unchecked ability to override an IJ’s bond decision under INA §236(a), without having to demonstrate why continued detention is warranted. At the next MCH one week later, DHS relented and withdrew the automatic stay. The family posted bond and Y— was released from ICE custody after a 2-month ordeal. But DHS persisted with the bond appeal, insisting that our client’s conviction was an aggravated felony.

The Board of Immigration Appeals disagreed (BIA Decision – redacted.) The Board agreed with us that under the categorical approach, Y—’s conviction is not an aggravated felony because the Virginia statute under which he was convicted lacks an element requiring that the victim be a minor, or specifying the age of the victim. The BIA then remanded the case to the Immigration Court. Having lost on the aggfel charge, DHS turned its focus to the CIMT ground of deportability. The government argued that although neither the categorical nor the modified categorical approach reveals that Y—’s offense is a CIMT, under Step Three of Matter of Silva-Trevino, the IJ should consider evidence from outside the record of conviction that purportedly demonstrated our client’s conduct was morally turpitudinous.

In October 2011, we filed our first motion to terminate, arguing that Silva-Trevino was wrongly decided because it conflicts with Fourth Circuit law, Supreme Court jurisprudence, and decades of adherence to the traditional categorical and modified categorical approach. DHS did not respond. After the Fourth Circuit rejected Silva-Trevino in Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012), we filed a supplemental motion to terminate based on intervening precedent. Again DHS did not respond, so we filed a notice of non-opposition, urging the IJ to rule on our long-pending motion to terminate. On the day of Y—’s next MCH in May 2012, DHS filed its brief in opposition, arguing now that attempted sexual battery in Virginia is categorically a CIMT. Despite having previously conceded that moral turpitude could not be discerned until Silva-Trevino Step Three, the government now urged the court to find that Y—’s conviction is a CIMT at Step One, because “moral turpitude is intrinsic to all offenses that have a realistic probability of being prosecuted” under the Virginia statute.

We filed one more lengthy brief in opposition, challenging the government’s categorical argument, maintaining that application of the “realistic probability” test articulated in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) – which was adopted by Silva-Trevino – was improper, and noting that DHS cited no authority for its contention that every conviction under Va. Code §18.2-67.5(c) is inherently a moral turpitude crime. Again DHS did not reply, and we anxiously anticipated a ruling at the next MCH in November.

But the IJ was finally persuaded and apparently didn’t need to hear any more. He granted our motion to terminate, found that DHS had failed to sustain its charges of removability, and terminated proceedings. After a 2½ year struggle, including seven hearings in Immigration Court, a failed DHS appeal to the BIA, habeas corpus proceedings in ED Va., and numerous rounds of briefing and re-briefing, we finally prevailed. Our client can now move on with his life, refocus on work and family, and put this agonizing chapter behind him. A very satisfying victory for the Benach Ragland team.

← Older Entries

Follow

Get every new post delivered to your Inbox.

Join 295 other followers