Immigration Droppings

What is Prosecutorial Discretion

On June 17, 2011, John Morton Director of Immigration and Customs Enforcment issued a policy memorandum on the exercise of discretion by ICE on certain cases for foreign nationals in removal proceedings.  The critical concept is that prosecutorial discretion is not an immigration benefit in and of itself.  Prosecutorial discretion is a mechanism in which a foreign national in removal proceedings can ask ICE for leniency in their approach to an operation of law.  

For instance, if a foreign national needs to reopen an old order of deportation, ICE will almost always oppose the motion and then the immigration judge will likely deny that same motion.  With prosecutorial discretion, ICE will either not object or even join the motion to reopen.  In the case of a "no objection," most immigration judges would reopen the case.  In the case of a joint motion to reopen, the immigration must reopen the matter barring a technial deficiency of the filing. 

On page 2 of the memorandum is a list of the general types of operations of law in which this memorandum applies. This list is not exhaustive to a creative attorney.  It is simply a guide.  On page 4 is a general list of postive factors that ICE will review in determining whether to exercise their discretion.  On page 5 is a list of disqualifying or negative factors that ICE will weigh against the exercise of prosecutorial discretion.

Our office has had two recent successes; one in which ICE joined in reopening a four year old removal order and the second was in their stipulation to a grant of cancellation of removal without hearing.  The common denominator in these cases was equitable foreign nationals.  

It's important for attorneys to understand how to prepare and submit a request for the exercise of discretion in these cases so that their client's best interests are properly represented.  If a request for prosecutorial discretion is denied, that is not the end of the request as there are layers of "appeals" to supervisors in the ICE chain of command.  It is also not the end of the person's case in removal proceedings.  

Please fully discuss your case with your attorney to determine if it fits the memorandum and if it does how best to present your case.  

Philip Eichorn

I-9 Discrimination Suit Settles in Ohio

Dangers in I-9 Self-Audits

The word “self” in “self-audit” scares me.  And it should scare you the employer.  The Obama administration is keyed in on using the I-9 audit as a powerful tool to disrupt the flow if undocumented workers to the U.S.  The States are lining up to protect their constituents as well by requiring participation in E-Verify and other programs to filter out unauthorized employment. 

By performing a “self-audit,” the employer can reduce the risk to exposure of penalties levied by ICE in a formal audit.  The primary issue is, who performs a “self-audit?” Do you want the same person who is completing the I-9 to audit their own work? How about another individual in the same department? When assessing the risk, the best answer is an outside law firm who specializes in immigration law and I-9’s. 

In doing so, the employer gets a fresh set of eyes on the I-9, the overall process in place for the company and the potential liability.  Immigration lawyers also have the experience in dealing with ICE, the regulations (or lack thereof) in this area and the current policy memorandum.  However, the most critical benefit: the attorney-client privilege. 

So as an employer when is the right time to perform a self-audit.  Now! Before a disgruntled employee makes a call to ICE.  Before a recently terminated and opinionated employee calls ICE.  Before the company considers signing up for E-Verify or bidding for a federal contract.  Before the company considers being sold!  I-9 liability can be very large.  Think Abercrombie who settled for $1.047 million dollars.  Is that a liability any employer wants on the books; either now or when the company goes up for sale? 

I-9 audits take a bit of time.  And there is going to be some initial resistance by the HR staff.  That said, there is a level of expertise that immigration lawyers bring to the arena that simply isn’t available to most HR staff. 

Remember, “good faith” is the primary argument used to mitigate fines.  And with a new wave of 500 Notices of Inspection recently issued, the reality is The ICEman is coming.  If ever there was a time to prepare for the worst of I-9 liabilities, the time is now.  And before official regulations are released!  

Philip Eichorn

Detention in Bedford Hts Ohio For Deportation

Immigration and Customs Enforcement (ICE) recently detained at least 35 foreign nationals in conjunction with their Operation Cross Check.  This operation was designed to remove criminal aliens.  Those detained in the northern portion of Ohio generally are housed at Geauga County Jail or Bedford Hts Jail while they are processed downtown.  Some immigration detainees at Bedford Hts will receive their first hearings (master calendar hearings and bond hearings) while they are their.  The detainees at Geauga County Jail will have to be relocated to either Bedford Hts. or Seneca County Jail (in Tiffin Ohio) for their hearings.  

Many criminal aliens are not eligible for bond due to the nature of their convictions.  However many are eligible for relief from removal in the forms of adjustment of status (with waivers), cancellation of removal or even asylum.  The Cleveland Immigration Court, although currently backlogged due to staffing shortages, does a consistently good job of scheduling fast hearings on relief from removal.  However, bond hearings sometimes can take awhile especially for the unrepresented.  

Our office routinely represents people in removal and deportation proceedings at these locations.  Please do forward our information.

Philip Eichorn

Temporary Protected Status for Syria

The Department of Homeland Security has issued notice in the Federal Register announcing that the Secretary of Homeland Security has designated the Syrian Arab Republic (Syria) for Temporary Protected Status (TPS) for a period of 18 months, effective March 29, 2012 through September 30, 2013. (77 FR 19026, 03/29/12).  Please contact our office at 216.970.7102 immediately to prepare and file your application if you're qualified.

In general, TPS is granted for 6 to 18 months.  DHS will recommend an extension to the President near the end of each time period.  Nationals and citizens from the protected country who are present in the U.S. will not be deported, can obtain employment authorization and shall not be detained on the basis of their status. 

In order to be eligible for TPS, the applicant must prove their identity and nationality, that they've been physically present and continuously residing in the U.S. since the date their country was designated, that they are otherwise admissible (with some exceptions) and they have not been convicted of a felony or two misdemeanors.  

The applicant must register for TPS within the specified period and can do so by filing an I-821, an I-765, the filing fee, passport style photographs and evidence of eligibility.  Of critical note, when the TPS designation ends, the applicant must be prepared to resolve their underlying immigration status.  TPS IS ONLY A TEMPORARY SAFE HAVEN; NOT PERMANENT STATUS.  As such, no filings should be made if it would subject the foreign national to mandatory detention or deportation proceedings that will ultimately result in removal (i.e. EWI post 2001).

 Syrian nationals should be advised of their right (by the immigration judge) to apply for TPS while in removal proceedings.  Further, if TPS is granted, the removal proceedings should be administratively closed.  

Philip Eichorn

 

On January 30, 2012 the Fourth Circuit Court of Appeals joined a vastly growing majority of judicial circuits that are declining to follow the Department of Justice’s precedent decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  The case is Prudencio v. Holder, No. 10-2382, slip op. (4th Cir. Jan. 30, 2012) and the Fourth Circuit held that the “procedural framework established in Silva-Trevino was not an authorized exercise of the Attorney General’s authority.”  Id.  The panel indicated that the “moral turpitude provisions of the INA are not ambiguous and do not contain any gap requiring agency clarification.”  Id.

In Matter of Silva-Trevino, the Board of Immigration Appeals (which is part of the Executive Office of Immigration Review and within the Department of Justice) attempted to construct a procedure for immigration judges to make determinations on whether or not a criminal conviction was a crime involving moral turpitude (CMT).  CMT’s routinely trigger removal proceedings and anyone who commits two or more is subject to mandatory detention while the removal proceedings are occurring.  (Mandatory detention means no bond!) 

The Fourth Circuit Court of Appeals is responsible for Maryland, West Virginia, Virginia, North Carolina and South Carolina.  Obviously this has a great impact on the Charlotte immigration court where the undersigned practices.  The Charlotte immigration court is responsible for all of the removal cases for residents in North Carolina and South Carolina. 

Thus, if anyone is currently in removal proceedings before an immigration judge in Charlotte for a crime involving moral turpitude, it is critical that their immigration lawyer understands this nuance.  Further, if any individual has been ordered removed for having been convicted of a crime involving moral turpitude and the immigration used the Silva-Trevino analysis, there may be grounds to appeal or reopen that case.  Also understanding what Prudencio now permits the immigration judges to use in making their determinations on whether certain crimes involve moral turpitude is critical for immigration attorneys advising criminal defense attorneys on their non-citizen clientele.

 

Philip Eichorn

 

TPS for El Salvador - Extended BUT Re-Register Time is Running Out

USCIS issued a press release announcing that DHS Secretary Janet Napolitano has extended Temporary Protected Status (TPS) for eligible nationals of El Salvador for an additional 18 months, beginning March 10, 2012, and ending September 9, 2013.  This press release was originally issued on January 10, 2012 but had incorrect dates for filing to re-register.  Current beneficiaries must file to extend their status within the 60 day window which ends on March 12, 2012.  Therefore, these applications should be filed today or tomorrow for receipt by USCIS on Monday March 12th.  

Employers should be cognizant of any employees who have completed their I-9's indicating employment authorization and especially with TPS designated countries.  Reverification is required.  Additionally, the Department of Justice has recently released a video on how to continue to employ these workers.  

Philip Eichorn

 

AILA Letter to Secretary Napolitano

On February 9, 2012 the American Immigration Lawyers Association (AILA) submitted a sign on letter to the Secretary of Department of Homeland Security (DHS) Janet Napolitano.  Included in the signators were the American Civil Liberties Union, the American Immigration Council and the Immigrant Defense Project.  The purpose of the letter is to encourage DHS to recommit itself to the principle benefits outlined in the recent prosecutorial discretion memorandums.  

The letter highlighted nine main departures by DHS.  

First, the letter encouraged DHS to issue employment authorization for those who have been granted prosecutorial discretion but may not have an independent means of obtaining same.  Second, the letter encouraged DHS to use deferred action as a benefit and on a generous basis.  Third, DHS should robustly review all detained cases; both current and future matters.  Fourth, that DHS should educate and inform the public and pro se immigrants regarding their rights under these memorandums.  Finally, DHS should incorporate the November 2011 Guidance to ICE Attorneys with the June ICE Prosecutorial Discretion Memorandum and do so in a public manner.

In addition to the above and perhaps the most important issue, DHS should encourage their trial attorneys to stipulate to grants of relief.  Instead, most ICE chief counsel offices have taken the position that administrative closure is the main thrust of the prosecutorial discretion memorandums.  This line of thinking is contrary to the purpose and intent of the memorandum and in reality violates the spirit of same.  ICE TA's should be stipulating to relief on a regular basis.  Instead, they engage in five hour cross examinations of low priority respondents.  This is not only violative of the memorandum but a colossal waste of resources.  

The sign on letter also encourages Customs and Border Protection to take steps embracing the memorandums and thought processes.  USCIS has done so but CBP has not.  DHS is an umbrella that encompasses all three (ICE, USCIS, CBP) and therefore the principles should be equally employed and executed.  

Finally, the sign on letter should include the LGBT community and family members as well as enforcing the June 17, 2011 Victims Memorandum.  

The primary issue with agencies is that they are executive branch creations that do not have sufficient judicial oversight.  In a sense, there is no "Sword of Damacles."  The agencies do what they want and by the time a regulation or policy is challenged and brought into court, the harm cannot be undone.  DHS issued policy memorandums.  DHS now selectively chooses how to implement them.  Is that really prosecutorial discretion or is it prosecutorial selectivity?  

Our office has successfully employed the memorandums due in large part to trial attorneys and ERO agents who "get it."  If you, someone you know or a loved needs immigration assistance and think you qualify for a prosecutorial discretion memorandum, please do contact us.

Philip Eichorn 

 

 

Bottleneck in Butler County Jail for Bond Hearings

At present, the Cleveland Immigration Court is struggling to provide bond hearings in a reasonable period of time for detainees primarily located at the Butler County Jail.  Here are the dynamics.  Any foreign national who resides or is arrested south of I-70 (through Columbus) and is detained by CBP, ICE or other entity for removal proceedings is transferred to the Butler County Jail.  ICE / ERO agents from Columbus make a bond determination on each individual.  If custody is transferred from CBP, then ICE agents have the authority to redetermine the bond amount.  

For almost all detainees, ICE issues a "no bond" or does not disturb a previously issued "no bond" by a sister agency.  This means that the foreign national cannot post a bond, be released and attend his or her removal proceedings.  Foreign nationals do have the right to bond and also have the right to have an immigration judge (in Cleveland) redetermine a previously set bond (or “no bond” in this case).  

There are factors that both ICE and the IJ's are required to use.  First, a determination if the foreign national is a risk to society pursuant to Matter of Urena.  Then, if either ICE or the IJ determines he/she is not, a bond is determined based on the factors enounced primarily in Matter of Patel.  

So why the bottleneck in Butler Co.?  Personally I believe this is a trickle down issue.  Congress's intent on bond is clear.  Their intent for bond, to ensure appearance at a future removal hearings and removing risky foreign nationals from public, has been grossly exaggerated by ICE and their leaders in this area to include punishment for not having proper immigration status and in specific for having crossed without papers.  Unless challenged they use bond as a punitive measure and as a leverage tool to get a foreign national to sign a stipulated order of removal.  As ICE’s performance is primarily correlated to the number of removal orders obtained and executed, it just makes sense. 

This aggressive and punitive state of mind has become pervasive due primarily to 9/11 and the years of negative media coverage.  The on-the-ground ICE agents simply don't buy into what Congress intended, follow the directives of their leaders and fail to apply common sense.  

As taxpayers we are paying over $70.00 a day to house people who sometimes have no or little criminal history.  That's simply a monumental misspending of tax revenues.  Wouldn’t that money be better served finding aliens who have criminal histories that are fugitives?  That thought process would be in-line with the recent national DHS-ICE memorandum on civil enforcement goals.  But that though process doesn’t get removal orders or people removed and therefore the stats aren’t padded and raises aren’t issued.

The immigration judges in Cleveland are generally very fair.  They routinely issue bonds in the range of $2,500 - $7,500.  These are reasonable bonds.  But in order to get to an Immigration Judge, the foreign national must find a lawyer from jail, retain that lawyer, file the motion, wait his turn in line for a hearing and then spend time and resources on a reasonable redetermination.  If the IJ's are routinely issuing bonds in this amount, why is ICE "no-bonding" people and fighting the reality?  

For ICE in this neck of the woods, it’s either ignorance as to the issue (which is scary that they don’t know what’s going on in their jurisdiction) or arrogance (which is even scarier). 

The Ohio AILA EOIR Liaison Chapter has had much success working with the Cleveland Immigration Court to accelerate the bond hearings and the ACIJ and Court Administrator are to be lauded for their responsiveness.  Now if only ICE would participate in justice and due process instead of ignoring this issue.  

www.eichorn-law.com

 

Why Matter of Islam, the BIA's recent case on CMT's, is a very poor decision.

On November 18, 2011 in the Matter of Islam, 25 I&N Dec. 637 (BIA 2011), the Board of Immigration Appeals (BIA) narrowed the interpretation and application of the phrase "single scheme of misconduct.”  In Islam, the defendant/respondent had been convicted using "two different credit and debit cards belonging to [another individual] on five separate occasions to purchase goods" and he "drove to four different locations and made five purchases over the span of a few hours."  The Immigration Judge found he had time to "dissociate himself and reflect on what he had done."  Without inquiring as to Respondent's state of mind or his plan for obtaining the cards and using the cards, the IJ found him subject to removal.  The BIA affirmed the IJ's decision and dismissed the appeal.  

In determining an immigration appeal, there are generally five types of legal arguments; textual, intent, precedent, tradition and policy.  The crux of the BIA's decision is based on precedent and tradition.  The BIA relied heavily on Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) instead of following circuit court precedent.  In doing so, the BIA refused to use the logical and longstanding argument of the Second Circuit Court of Appeal in Nason v. INS, 394 F.2d 223 (2d Cir. 1968).  In doing so, the BIA has established a precedent that is very narrow and will be very difficult to overturn. 

The BIA’s decision does indicate that the BIA is unable to determine Congressional intent on the entire phrase "single scheme of misconduct," but the decision does not delve into Congressional intent of the word "scheme."  Nor does the BIA analyze the textual argument that "scheme" means "plan" and not simply a compilation of actions.  The BIA failed to address the definition of the word "scheme."  Black's Law Dictionary defines "scheme" as "a systemic plan; a connected or orderly arrangement, esp. of related concepts <legislative scheme>. 2. An artful plot or plan, usu. to deceive others < a scheme to defraud creditors>."  There are multiple definitions for this word including "plan," "program of action to be followed," "any system of correlated things or parts."  

This decision is flat wrong and fails miserably to take into account the plain clear meaning of the word "scheme."  

The decision will be difficult to overturn.  The only avenue to overturn this case is to appeal a current action to the BIA, allow the BIA to deny that appeal based on Matter of Islam and then take it to the Circuit court level for a petition for review.  In understanding this progression, it must be also understood that the underlying charge of removability (INA 237(a)(2)(A)(ii)) subjects the respondent to mandatory detention pursuant to INA 236(c); thus no bond.  It will be very hard to find a client who is willing to stay in detention, make these arguments at the immigration judge level (thus preserving them for appeal) and fight this case through the BIA and then through the Circuit level while incarcerated.  And if successful, that will only be one Circuit with ten others remaining or if super lucky the U.S. Supreme Court would take up a case in a few years to resolve any splits. 

This is a primary reason that we must have comprehensive immigration reform.  We cannot wait for a tough, resilient foreign national to happen across our desks to change the law.  There must be district court review of this type of action and not simply relying on the BIA to interpret their judges, the statutes and regulations.  That's like allowing a police captain to review and interpret his own officer's determinations.  It simply is not transparent nor is it an independent review. 

 Philip Eichorn

 

The New 212(c) - Judalang v. Holder

On December 12, 2011 the Supreme Court of the United States, in Judulang v. Holder, 131 S.Ct. 2949 (2011), unanimously rejected the Board of Immigration Appeals rulings in two seminal cases; Matter of Blake, 23 I&N Dec. 722 (BIA 2005) and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005).  The holdings in those cases were that in order for a foreign national to avail themselves of 212(c) relief in removal proceedings, there would need to be a "comparable grounds" analysis between the charge of deportability and a ground of inadmissibility.  As of now, that test no longer exists. 

The waiver called 212(c) allows foreign nationals with criminal convictions prior to 1996 to have their removal/deportation waived if they meet a stringent equity test.  The comparable grounds test made it very difficult to get the waivers approved.  If the deportability ground charged did not directly correspond to a ground of inadmissibility, the IJs would be bound by precedent and deny the case.

The primary example is convictions for firearms.  A foreign national can be either removed or deported (difference in pre-1996 charge of deportation or post-1996 IIRIRA removal charge) for a firearms violation.  However, an incoming foreign national is not inadmissible (or excluded) from the U.S. for a similar conviction.  Thus a firearm conviction would fail the Blake test but now pursuant to Judulang would now permit the 212(c) application.

The Court's opinion in Judulang was not without strong language.  In fact, the Court held at one point that the "BIA has flunked that test here."  The Supreme Court held that the BIA's approach to the comparable grounds test is "arbitrary and capricious" and in violation of the Administrative Procedure Act.    

So who does Judulang help?

The case opens the door for aliens who are in removal proceedings with pending 212(c) issues to change course in their arguments about comparable grounds.  This case also opens the door for aliens who are appealing denials of 212(c) applications to move to remand their cases back to the immigration judges for further determinations.  This case also opens the door for 212(c) relief for people with pre-1996 criminal convictions that raise deportation but not grounds of inadmissibility (firearms).  Interestingly, the one group of people who may now have an opening but have still a big challenge in winning their cases are those who are outside the U.S. with final orders of removal because of denied 212(c) cases.

What should you do?  If you or someone you know fits the description above, please discuss it with your lawyer.  If you don't have a lawyer, then feel free to give us a call.  

Philip Eichorn