Board of Immigration Appeals Schedules Oral Arguments in Case of Dominican National Who Has Been Detained for Nearly Two Years -- Decision Expected to Have Far Reaching Implications
August 7, 2011 – Falls Church, VA – The Board of Immigration Appeals has scheduled oral arguments for a case involving a long term Permanent Resident, who was born in the Dominican Republic, and has been detained in immigration custody without bond for nearly two years. The Resident, a long term resident of Easton, Pennsylvania, who’s name cannot be released for privacy concerns, has three children, has been married for over a decade and, prior to his detention, was the owner of a lucrative auto shop in Allentown, Pennsylvania. When taken into custody, pursuant to the harsh mandatory detention statute found in the Immigration & Nationality Act, the family business was destroyed and the Resident’s wife and children lost their home, cars and their only source of financial support, as well as a large part of their emotional support.
Removal proceedings were instituted in February of 2010, based on the alien’s 2002 conviction for Attempted Arson in the Third Degree in New York. “It took immigration almost a decade to commence removal proceedings against my client,” said Raymond Lahoud, the alien’s attorney who will be orally arguing the case before the Board of Immigration Appeals on August 10, 2011. Lahoud, a national Deportation Defense attorney for Baurkot & Baurkot, noted that his client “was prepared to win this case last year, but the Department of Homeland Security filed a last minute motion, claiming that the offense that [he] was convicted of was an aggravated felony, under Immigration Law. When a crime is deemed an aggravated felony, the consequences are devastating and make it impossible for any individual in deportation proceedings to assert any form of relief.”
Judge Walter Durling rendered a decision at York, Pennsylvania’s Immigration Court, against Lahoud’s client, agreeing with the Department of Homeland Security’s flawed argument that, just because parts of the New York statute were found in a federal aggravated felony statute, the New York statute is deemed an aggravated felony.
“The York Deportation Court’s decision was flawed in every way and lacked any support in case law,” said Lahoud, “Baurkot’s deportation defense team reviewed legal decisions from across the nation and there is a complete lack of precedent supporting the Government’s argument against my client. If anyone agrees with the Government’s argument, then, quite possibly, every state crime, regardless of how small it may be can be deemed an aggravated felony, just because the state statute has a few of the same words that are contained in a federal aggravated felony statute.”
“This case has far reaching implications and could lead to the deportation of hundreds of thousands of more aliens who, quite simply, should not be deported, given that their crime is anything but an aggravated felony under Immigration law,” said Lahoud, “it seems as though they are using my client as a test case, forgetting that he has long been a contributing member of society with a wife, business and children. There is absolutely no way that New York’s Attempted Arson statute is an aggravated felony and the Government’s attempt to make it so would lead to a massive expansion of what is considered an aggravated felony – a phrase that has the most severe of consequences with respect to removal proceedings.”
The Board of Immigration Appeals, commonly referred to as the BIA, only hears twelve oral arguments per year. Mr. Lahoud, who has offices in Allentown and Easton Pennsylvania as well as in New Jersey and New York, has sought and received the assistance of fellow immigration attorneys as well as the American Immigration Attorneys Association and the American Immigration Council, both have which dedicated whatever resources Mr. Lahoud requires to ensure success before the Board of Immigration Appeals.
Aug. 11, 2011
Yesterday, I appeared before the BIA in Falls Church, Virginia and presented oral arguments with respect to one of my clients. I attended my client's wife and mother, several others that work for the Baurkot Law Firm and Andres Benach from Duane Morris in Washington, DC.
I believe that we did quite well while there. There were individuals from several other immigrant rights organizations present. The Board was very inquisitive and was willing to listen to all arguments. The members seemed to have open minds and allowed me to really bring forth my arguments in full.
The DHS attorney was chastised by the Board for the Department's constant failure to respond to briefs submitted by Respondents in every appeal. In seems as though DHS simply sends in a basic "dismiss Respondent's appeal without any comment or even review by any more than a single board member."
DHS' brief in my case only asked for a summary affirmance of the IJ's decision. Board members told DHS that in all cases, DHS should actually put some time in and respond to a brief submitted by a Respondent. In a case of first impression, such as the one before the Board yesterday (where DHS forced the issue), then DHS really has no reason not to submit a brief-- at least a supplemental brief when oral arguments were actually granted.
Several issues seemed to be of concern to the BIA. One was that if the Court rules in the favor of DHS and finds Attempted Arson in the Third Degree in NY to be an aggravated felony, the sliding scale will continue sliding and the amount of people who can be deported would grow substantially, even for the smallest of crimes. There was kind of a question of "where are we going to stop" if we keep interpreting the "described in" part of aggravated felony statute starts including all kinds of state convictions. Where is the limit? DHS really did not have a response to that, other than saying, in the arson case, deportations would not increase that much.
I wanted to email all of you to thank you for your many comments and words of advise when I reached out to you. Also, I wanted to express a special thanks to the AILA Philadelphia Chapter and National Office, Andres Benach from Duane Morris, who took time out of his schedule to be with me yesterday at the BIA, the Immigrant Defense Project in New York, Isaac Wheeler from IDP and Daniel M. Kowalski, editor of Bender’s Immigration Bulletin– everyone provided a great deal of information that was indispensable.
Again, many thanks to all. I will keep you updated as this case progresses.
Raymond Lahoud, Esquire
Law Offices of Baurkot & Baurkot227 South Seventh Street
Easton, PA 18042
Phone: (484) 544-0022
Fax: (610) 810-1878
Links to documents:
Respondent's brief: click here
DHS Mot. Summ. Aff: click here
DHS Mot. to Pretermit 1: click here
DHS Mot. to Pretermit 2: click here