Immigration Droppings

North Carolina is a Secure Community

Immigration and Custom Enforcement’s (ICE) controversial Secure Communities program is now active in all 100 counties in North Carolina, the program reported.  It's interesting to note that ICE lacks sufficient bed space in North Carolina for detentions following a Secure Communities or 287(g) arrest.  At present, a substantial majority of residents of North Carolina who are arrested pursuant to the above noted programs and have relief available from removal are being transported and housed in Stewart, GA or the North Georgia Detention facility.  The bond hearings are held in Atlanta via televideo and/or telephone.  This puts ICE at a distinct advantage as documents submitted by ICE are not reviewed by the aliens counsel and there is no one to hold the court to its burden of ensuring ICE plays by the rules. 

Instead of racing to Secure Communities, ICE should have put some bed space into play so that residents captured in the net would have the opportunity to litigate their cases in their home state, near their families and where their lawyers have easier access to them.  

Philip Eichorn

www.eichorn-law.com

Sandusky Bus Station: A CBP Haven

We've seen a substantial increase in activity by the Border Patrol, a sub-agency of the Customs and Border Protection, at the bus station in Sandusky.  Many unknowing foreign nationals are traveling by bus between New York / Newark and Chicago or farther out west.  As a matter of course Border Patrol is inspecting documents of passengers.  If an alien is unlucky enough to get picked up, Border Patrol does not usually grant a bond.  Instead, they complete the custody determination worksheet, assign a no bond and transfer the detainee to ICE (in Tiffin, Ohio at the Senceca County Jail).  ICE generally won't disturb the previous bond determination made by their sister agency.

Therefore, the only course of action is to file a bond redetermination with the immigration judge.  The Cleveland immigration judge's have been tough but reasonable and fair in their bond determinations.  They have been consistent with what ICE would have issued if it was there case.  By not disturbing the prior determination, this allows ICE to leverage custody with a stipulated order of removal (or "you'll be home in two weeks if you sign this document").  

Signing a stipulated order not only carries the consquence of the order of removal, but for those who have been unlawfully present in the U.S. for more than one year, their departure then triggers the ten year bar to returning.  Coupled with the bar for having been removed, it is almost impossible to re-enter the U.S. lawfully.  In summary, if somone you know, a friend or a relative is in this situation, they cannot sign that document and they need representation immediately.  

Philip Eichorn

www.eichorn-law.com

 

 

Motions to Reopen from Outside the U.S. - Sixth Circuit in Prudize v. Holder

On February 3, 2011 the Sixth Circuit Court of Appeals issued its decision in Prudize v. Holder. This is a precedent case and opens new doors for motions to reopen at both the Board of Immigration Appeals level and at the immigration court level. The Circuit held that the BIA does possess jurisdiction to receive a motion to reopen filed by an alien outside the United States; either having self-deported or been removed.

This type of case occurs when an alien, either knowingly or unknowingly, departs the U.S. subsequent to an order of removal and then comes into facts and/or circumstance that merit filing a motion to reopen. The filing can occur either while the case is on appeal to the BIA or if it is still at the immigration court level (as the alien never appealed the original decision). In Prudize, the petitioner/alien was removed for a drug trafficking conviction. After his removal, that conviction was overturned; he had pleaded guilty to the charge without receiving the proper immigration advice. See Padilla v. Kentucky. As the conviction was the lone bar to relief from removal and adjustment of status, his case could now be reopened and adjudicated. However, upon receiving the filing, the BIA held that it lacked jurisdiction to adjudicate the motion to reopen itself as Prudize was filing from outside the U.S.

The primary basis for overturning the BIA’s decision was that the regulation used by the Board in their decision was not in accordance with the governing statute. Simply stated, the BIA made a regulation/rule that was outside the scope of Congressional authorization.

It is critical to understand that this case simply means the BIA and the immigration judges have jurisdiction to review the motion to reopen, issue a decision on whether or not they are going to grant it and their rationale for said decision. This case does not stand for the premise that the BIA or the immigration judges must grant the motion. The motion to reopen must still conform to the tedious filing requirements espoused in the regulations including the numerical and time requirements. Time limits are usual avenues for dismissing motions as untimely so it is critical that foreign nationals in proceedings maintain good contact with their lawyers; even if they depart the U.S. while their case is on appeal and shortly thereafter.

 

Philip Eichorn

www.eichorn-law.com