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

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

 

 

 

H-1B Cap Exhausts: Change is Needed Part 2011~

I posted a similar blog earlier this year.  Last week USCIS announced the FY 2012 H-1B cap exhausted.  There are several things to draw from this.  

First, and on a positive note, when the economy is doing well companies are hiring.  For FY 2011 the cap exhausted in January of 2011.  For FY 2012 the H-1B cap exhausted in November; two months earlier.  While clearly note the sole nor a scientific indicia of a recovering economy, there is something to be said here.  

Second, we still need change.  This is the primary opportunity for President Obama to issue an executive order suspending the filing regulations for FY 2013, allow filings now, and also order DOS/DHS to issue advanced paroles to those who get their H's approved.  This would allow the economy to continue to grow!  

Third, we still need change.  The exhaustion of a cap (that is much too limiting) should be a key topic when discussing comprehensive immigration reform with anyone; whether its a senator, representative, your grandmother, your co-worker or your friend.  Why do we want to limit our potential economic growth?  It's simple.  The voters are entitled and not privileged.  They are entitled to jobs and don't feel the privilege of getting one and working one.  Case in point is the Alabama law.  Not only did it scare away those who are undocumented or without employment authorization, but those who were born here and out of work certainly haven't stepped to the plate to cover the employee shortages.  

The exhuastion of the H-1B cap does not mean that cap-exempt filings are precluded and these should continue to be filed.  As well, if there is an employee who is transferring over that has been previously counted against the cap then these cases should also be filed.  However, any transfers of employment where the beneficiary was not counted against the cap (from a school to a private employer as an example) cannot be filed until April of 2012 and the person cannot start working until October 1, 2012.  It's always best to check with your in house counsel and/or an immigration lawyer on these issues prior to proceeding. 

Philip Eichorn

Track 3 FOIA Requests Violate Settlement Agreement Says ND California

The U.S. District Court in the Northern District of California granted partial summary judgment, ordering USCIS to respond to Alien file requests in 20 days absent “unusual circumstances.”  The Court further found that Track 3 violates a 1992 settlement agreement and was promulgated in violation of the APA and FOIA.  The case is Hajro v. USCIS. 

The issue here is that Congress did not specifically permit discovery in removal proceedings.  However, Congress did indicate that an alien has a right to review his/her alien file.  DHS/USCIS have fought back and indicated they are not allowing defense attorneys to simply review the file as the scope of that review is limited by the Freedom of Information Act and Privacy Act.  Some judges have held this to be incorrect and ordered DHS to produce the file.  Some have agreed with DHS.

That said, the underlying basis for obtaining the majority of the alien file is to file a FOIA request. According to regulation the response must be answered within 20 days.  There is a settlement agreement frm 1992 that controls.  As USCIS is so far behind and simply cannot answer all the FOIA requests in a timely manner, the adopted a procedure to allow for faster dissemination of the responses for those in removal proceedings; Track 3.  The ND CAL held that Track 3 is incorrect and that USCIS must respond within 20 days.  

Interesting that President Obama has preached transparency of government and is promoting jobs.  It seems like a very simple fix here.  Add in an additional hundred or two hundred FOIA responders and comply with the regulations and settlement agreement.  Remember, the President does not need Congressional approval for this fix; he's the head of the executive branch and has unfettered control over the agencies in said branch.  

Philip Eichorn

 

 

Widow(er) Window Expiring on October 28, 2011

The two-year marriage rule for widow(er)s of U.S. citizens was abolished, but widow(er)s must file an I-360 by October 28, 2011 if the marriage was less than two years old at the time of death, and the death occurred prior to October 28, 2009. If you or someone you know is in this situation, please contact us immediately.

Philip Eichorn

Raleigh Man Arrested for Falsifying Immigration Documents

On September 13, 2011 Immigration and Customs Enforcement announced the arrest of Tommie Rand Pierce.  He's a 68 year old Raleigh man who took money from people, falsified their immigration papers and submitted them to USCIS for immigration benefits.  Link to the ICE Announcement.  At this point there at least 265 aggrieved individuals who need help rectifying their choice of preparer (which really should only be a lawyer).  

It's critical that all foreign nationals request to see their attorney's bar license and/or certificate prior to hiring them to do work.  All states require attorneys to carry proof that their license is current and unexpired.  Those who are caught up with paralegals, notarios and other people such as Mr. Pierce, must excuse themselves from these situations, search the American Immigration Lawyers Association website for the immigration lawyer search function and use that to find themselves a reputable attorney.  

Philip Eichorn

ICE Arrests More Than 2,900 Convicted Criminal Aliens

In an operation named "Cross Check," Immigration and Customs Enforcement arrested over 2,900 convicted criminal aliens.  These people are the focus of the Obama administration's removal policy and allocation of assets.  The criminal alien class is supposed to have the largest amount of fiscal resources devoted to removing them.

It's critical that all people understand that just because a person is arrested by ICE doesn't mean their detention is mandatory and without bond.  There are a great many exceptions and friends and family should retain counsel to review these cases.  ICE agents are human and they do make mistakes and they do misread the law.  

Additionally, there are a great many avenues of relief from removal regardless of whether detention is mandatory or not.  Many people who have been lawfully admitted either as a non-immigrant or as a permanent resident can apply for waivers or cancellation of removal if they are eligible.  As well and depending on the age of the crime, there are arguments that the old law under which the person was convicted was not a deportable statute.  Finally, convictions that occurred prior to 1996 may be eligible for 212(c) relief.  This form of relief as well as the 212(h) waiver can be used to obtain lawful status even for those convicted of aggravated felonies.  ICE posted a list of those arrested and at least two of them may not even be deportable!

Please call us if you or a loved one has a situation listed above or a similar one. 

 

Philip Eichorn

Fiscal Year 2013 Diversity Lottery Registration

Yesterday the Department of State announced the 2013 Diversity Visa Program (DV-2013) will open at noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2011.  The regristration period will close at noon, EDT, Saturday, November 5, 2011. All applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) which can be found at www.dvlottery.state.gov. DOS indicates that paper entries will not be accepted.  If you or someone you know has questions or needs assistance in registering, please contact the undersigned.

 

Philip Eichorn

 

Ohio BMV Policy Regarding Asylees

A recent policy initiated by the Ohio Bureau of Motor Vehicles (BMV) has many asylees and attorneys concerned.  When Asylees apply for a driver’s license BMV seizes all of their documents and holds them while confirming their asylee status.  

Initially, we're curious as to what legal authority the Ohio BMV is operating when it seizes these documents.  Second, and out of reasonableness, the asylees are without proper identification while Ohio.  

The Ohio Chapter of the American Immigration Lawyers Association is currently engaged in dialogue with the BMV to ascertain what drove this shift in policy and the authority for it.  If you know of a case such as this, please contact the undersigned as soon as possible so that we can include your (or your friends, coworkers, family member's) complaint.  

 

 

Philip Eichorn

Do I or Don't I?: The I-9 Self-Audit And Who Does It?

Our office routinely performs I-9 self-audits.  In the course of preliminary conversations with potental new clients and existing clients contemplating a self-audit, this is the primary question.  What benefit do I get out of outsourcing an I-9 self-audit.  The answer is part legal, part experience and part common sense.

First, as an immigration law firm, we know immigration law and the different statuses.  For instance, there is a difference between a person who is on OPT and on an H-1B.  How that I-9 is completed and updated when the H-1B goes into effect is an easy example.  As we routinely deal with cases that are changes and adjustments of status, we know what status is authorized to work and when.  We also see these documents on a daily basis and know when there are potential issues impending.  

Our firm is part of the American Immigration Lawyers Association.  AILA is a top-notch organization that is on the cutting edge of communication with ICE and HSI as they ramp up worksite enforcement.  We get the information in much more depth and faster.  Some firms that provide wrap around litigation services, labor and employment law and HR counseling are excellent resources for those areas.  But they are not immigration lawyers.

Second, when determining whether or not to perform your own I-9 self-audit, think about who has been filling them out for the past several years.  Do they have the proper training?  Have they been to the recent conferences?  Are they tied in to the AILA resources?  Common sense says, is an independent third set of eyes better to review the I-9's than the set of eyes that completed the I-9 to begin with?

That last question is the one that captures the most attention.  A company can have either administrative or criminal liability.  If there is a knowing pattern or practice by the HR person completing the I-9's, wouldn't you want to know now and begin to mitigate the liability?   

Please confer with your current general counsel and determine if they are experienced immigration lawyers and if not, now is the time for that check-up.  

 

Philip Eichorn

www.eichorn-law.com