Ever wondered about the burden an applicant for removal of conditions on permanent residence should meet? According to the First Circuit an adjudicator could use post-marriage conduct in determining whether a marriage was bona fide to remove the conditions on her permanent residence.
The applicant in Lin v. Holder petitioner the First Circuit for review of the Board of Immigration Appeals’ denial of her application to remove the conditions on her residence. She was married to a US citizen in 2000 and upon her entry into the United States in 2002 was granted conditional permanent residence.
Lin hardly lived with her husband. She did not know what he did. The only thing that they had jointly was two tax returns they filed together. Lin then moved to New York and started an extramarital affair, during which she got pregnant. They visited each other a total of three times after they lived separately.
In 2004, after visiting Lin, her husband found out about the affair and filed for divorce. Before the separation, Lin and her husband filed a joined petition to remove the conditions on her residence. Her petition was denied and her case was referred to the immigration judge, who denied her waiver petition, and the Board upheld.
The First Circuit upheld the Board’s decision to deny the removal of conditions. The court reasoned that the couple’s conduct after marriage was indicative of a relationship that was not bona fide. The court underscored the extramarital affair and the lack of evidence to show a bona fide relationship warranted a denial of the Petition for Review.
I maintain that these Petitions for Review in removal of conditions cases are among the hardest cases in immigration law. Please let me know what you think about the case and whether you believe the Petition for Review should have been filed.
The Seventh Circuit recently ruled that a lengthy record of traffic violation, which included several “aggravated offenses”, was enough to deny Cancellation of Removal. Jose Ortiz-Astrada came to the United States 1996 and fathered five children in the United States. An applicant must show that he has lived in the United States for more than ten years, posses good moral character and his removal would lead to extreme hardship to qualify for non-lawful permanent resident Cancellation of Removal. The Seventh Circuit improperly stated these requirements to include the first two. The third requirement was not at issue in the case.
The only issue in the case was whether Astrada deserved the exercise of discretion since he is a person of good moral character. Astrada had a lengthy traffic record which included several DUIs, with one pending at the time of trial, and several aggravated traffic offenses. He moved to continue his individual hearing because of the pending DUI charge. The immigration judge continued the hearing several times but denied the last one since, in his opinion, Astrada did not meet the good moral character requirements because of his lengthy record. He appealed arguing that the immigration judge’s denial of the continuance violated his due process rights.
The Seventh Circuit ruled that the denial of the motion to continue was not a violation of his due process rights because even with the continuance, the Respondent would not have been eligible for relief because of his record.
I hear the word “ten years green card” a lot in my practice. I explain to everyone that it is not automatic and proving these cases is very hard. This case is one of these where the case should not have been filed with the immigration judge. Please let me know what you think.
I always tell clients that they should not lie on any governmental applications; the same is true when it comes to asylum applications, where lying could lead to a statutory bar against future relief from removal. The Eleventh Circuit recently ruled on the issue in Ruga v. U.S. Atty. Gen.
Ruga was an Albanian citizen who came to the United States in 2001 and filed for asylum in 2004. The application, however, was frivolous, and Ruga did not even challenge that determination. She was placed in removal proceedings and did not appear for her initial hearing. She filed a motion to reopen and the immigration judge granted it. The immigration judge ordered her removal since her previous application was frivolous. Ruga objected as to the order since she did not receive a new warning from the immigration judge regarding the consequences of filing such application, even though she received such warning when she filed her application before the Service.
Applicants for asylum must sign their applications and acknowledge the following warning when they do so:
WARNING: Applicants who are in the United States illegally are subject to removal if their asylum or withholding claims are not granted by an Asylum Officer or an Immigration Judge. Any information provided in completing this application may be used as the basis for the institution of, or as evidence in, removal proceedings even if the application is later withdrawn. Applicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and Nationality Act. See 208(d)(6) of the Act and 8 CFR § 208.20.
Ruga appealed to the Board, and the latter upheld the immigration judge’s decision. The Eleventh Circuit upheld the decisions since nothing in the statute obligates the immigration judge to issue the same warning in removal proceedings. The court joined other circuits that previously ruled that the written warnings do not have to be reissued.
As I mentioned in previous posts, this type of cases should not have been filed, and should not have been appealed to the Eleventh Circuit. Please leave me a comment and consider following me on Google+, twitter, or linkedin.
In a decision issued last week, the Eleventh Circuit ruled that a Georgia pardon that did not restore Second Amendment rights was not a full pardon for immigration purposes. In Castillo v. U.S. Atty. Gen., the Respondent was a lawful permanent resident who was convicted of statutory rape under Georgia law. He served a sentence after being convicted. He moved for the court to pardon him and the court ordered his pardon. It also restored his rights except those under the Second Amendment.
Castillo was placed in removal proceedings. He moved to terminate his proceedings arguing that he had received a full pardon. Under INA 1227(a)(2)(A)(vi), the Respondent’s conviction could be waived if he was the beneficiary of a full pardon. The immigration judge denied the waiver application since his pardon was not full and conditional, since it did not restore his Second Amendment rights and the BIA upheld.
In upholding the BIA‘s decision, the court reasoned that the fact that the pardon did not restore Castillo’s rights under the Second Amendment made the pardon deficient, making it not a “full pardon” for immigration purposes. The court added that Castillo could have restored his Second Amendment rights, which is allowed under Georgia law.
I agree with the court’s decision since congressional intent, cited in the opinion, clearly shows that a full restoration of rights is needed for the waiver to be granted. Please leave me a comment if you have any questions.
In an unpublished decision, the Board of Immigration Appeals ruled that North Carolina’s assault on a female (14-33) is not a removable offense since it is not a crime of violence or a crime of domestic abuse under the Act.
The Act allows the removal of any immigrant convicted of a crime of violence or a crime of domestic abuse. The Board and federal circuits however, have long ruled that simple assault is not a removable offense since assault encompasses conduct that should not lead to removal. North Carolina courts have adopted the common law definition of assault, where the mere apprehension by the victim is adequate for a conviction. The government charged the respondent in the above-mentioned case with removal for conduct adequate for a conviction but not enough for removal.
I want to be very clear, I do not condone assault on any human being, especially special classes of victims that could not fend for themselves. However, not every conviction should lead to removal. I agree with the Board’s decision, which could be found on this link 216811151-Eduardo-Gomez-Jurado-A090-764-102-BIA-Mar-28-2014.
The Board of Immigration Appeals upheld an asylum applicant’s right to a hearing to present his testimony and application. In Matter of E-F-H-L, 26 I&N Dec. 319 (BIA 2014), the Board held that the immigration judge‘s ruling that an applicant was not entitled to a hearing because he was not prima facie eligible, violated regulatory rights.
The respondent was a national of Honduras who based his application on the threat that he would face because he is a land owner in his native country. He alleged that he was threatened because of a land dispute. The immigration judge dismissed his application because he could not be a member of a particular group, threatened land owners in Honduras, and ordered his removal. He appealed.
In reversing the immigration judge‘s decision, the Board ruled that the applicant has a statutory right to a hearing to resent his case under 8 U.S.C. § 1229a(b)(4)(B) (2012). The Board added that the immigration judge‘s decision was not premised on a statutory ground of ineligibility, but merely on a misinterpretation of the law. The Board thus reversed the immigration judge and remanded the case to the immigration judge for an evidentiary hearing.
I applaud the Board‘s decision since it upheld an essential right for asylum applicants. I have argued the same thing in court before, but on Fifth Amendment Due Process grounds. Please leave me a comment and follow me on Twitter, Linkedin, and Google+.
In a decision that is being opposed by the majority of immigration attorneys, the Supreme Court ruled that certain beneficiaries that age out do not qualify for automatic conversion to save their priority date. As you may know, the INA allows minor children to derive status from their parents. In other words, a child under 21 is automatically included as a derivative if, for example, his US citizen aunt petitions for her brother. Problems arise however, when the parent is a citizen of a country with long backlogs on visa numbers, and the parent’s number does not become current until after the child turns 21. The Child Status Protection Act was passed by Congress to alleviate the problem of “aging out”. The Act freezes the age of the child at the date of filing the application. The Act also allows the beneficiary to deduct the amount of time it took for the petition to become current, to allow him to be 21 at the time of filing for adjustment of status. (confused yet?)
The problem presented in the case dealt with the “automatic conversion” provision of the law. The problem arises when the petition is initially filed by a petitioner who is lawful permanent resident, and the parent naturalizes before the beneficiary’s adjustment of status. The law allows USCIS to automatically convert the petition to the proper visa category. Five Categories exist under the INA:
F1: the unmarried, adult (21 or over) sons and daughters of U. S. citizens;
F2A: the spouses and unmarried, minor (under 21) children of LPRs;
F2B: the unmarried, adult (21 or over) sons and daughters of LPRs;
F3: the married sons and daughters of U. S. citizens;
F4: the brothers and sisters of U. S. citizens.
At issue in the case was whether the beneficiaries under the last two categories are also entitled to “automatic conversion” under the law. The case involved several individuals, one of whom was the beneficiary of a visa petition filed by his sister (F4). His daughter was included in the petition, but aged out after his visa number became current. He came to the United States and immediately filed a petition on her behalf. USCIS assigned the priority date as the date when it was filed instead of the priority date of his petition, under which the daughter was a derivative. He sued to enforce the old priority date, and the District Court, applying Board of Immigration Appeals’ case law denied the petition. The Ninth Circuit sitting en banc reversed and the case was appealed to the Supreme Court, which granted certiorari.
In a nutshell, the Supreme Court ruled that the law does not allow for automatic conversion, when it comes to beneficiaries of F3 and F4 derivative beneficiaries. The main reasoning is that the qualifying relationship between the original petitioner and the beneficiary no longer existed. The Justices claimed to use statutory interpretation to reach this conclusion. I tend to agree with Justice Sotomayor, who wrote the dissenting from the plurality since the Act does not distinguish between beneficiaries and allows automatic conversion in all cases. Visit this link to read the opinion 12-930_4g18.
The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.
Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.
As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.
To read the three decision visit here.
The American Immigration Council published a report today showing that the majority of removals are being conducted through expedited removal procedures like expedited removal, reinstatement of removal, and stipulated removal. These three mechanisms, in my opinion violate basic constitutional rights including Due Process.
The three mechanisms allow immigration officials or an immigration judge to hasten an immigrant’s removal. The first two, expedited removal and reinstatement of removal, allow an immigration officer to remove an applicant for admission at a port of entry or if found within 100 miles from the border. The procedures does not take into account the person’s contacts in the United States. The only possible recourse for the immigrant is to exhibit fear of returning to his country, after which he will be subjected to a credible fear interview. Oftentimes, the immigrant is not informed of his right to counsel or know that he had been deported.
Lastly, an immigrant could also stipulate to be removed from the United States. The report speaks about the coercive nature of the interrogation process, which raises serious Due Process concerns. During these interviews, immigration officers usually use coercive tactics to “convince” the immigrant to stipulate to be removed. These individuals are usually in detention, which raises serious issues regarding the voluntary nature of these stipulations.
The removal system is plagued with injustice and the odds are usually stacked against individuals who do not know the system and usually do not speak English. While some might believe that these expedited removal proceedings might be the right procedures to deport people who have no right to be in the United States in the first place, they are, in my view, illegal and a slap in the face of our judicial system. America could simply do better.