Sunday, November 20, 2011

Special visas offer protection to immigrant victims

Brandon Wade/Special Contributor
Jenna Carl, Immigration and Legal Services case manager at Catholic Charities of Dallas, speaks about the importance of T and U visas and collaboration with local law enforcement during a news conference Wednesday in Irving.

Staff Writers
Published: 16 November 2011 11:10 PM

 IRVING — The young woman had endured the verbal abuse for years, but when her boyfriend turned his fists on her, she finally fled with their child.
Despite the woman’s unlawful immigration status in Texas, Dallas police and the Dallas County district attorney’s office helped her. Soon, Catholic Charities of Dallas was involved, too. Today, the woman — who is in her 20s and married to someone else — holds a “U” visa, one of more than 25,000 that have been given since 2009 to immigrant victims of domestic violence and other serious crimes, such as rape and assault.
“It didn’t seem possible that something good could come out of something so bad,” said the woman, who requested anonymity.
This week, federal immigration officials are in the Dallas area training nearly three dozen law enforcement and social-service agencies on the U visas, as well as a similar document known as a “T” visa. Both enable illegal immigrant crime victims to remain in the U.S. up to four years if they agree to work with authorities to solve the crimes.
Advocates had argued for years about the need for a program to help immigrant victims of serious crimes. In the last two fiscal years, the federal government has reached its annual cap of 10,000 for U visas. Last fiscal year, the government issued the most T visas ever for human-trafficking victims — 557.
The visas, though, are another point of controversy in the already-heated, often-partisan immigration debate.
Critics say illegal immigrants should receive no assistance, even if they are the victims of a crime. But supporters of the special visas believe the victims should be protected and that their assistance in catching violent criminals is crucial to keeping a community safe.
“We want everyone … to know what kind of help there is for immigrants who are crime victims,” said Lisa Kehl, the Dallas district director for U.S. Citizenship and Immigration Services. The agency launched a public-awareness campaign in the area this week that features a confidential hotline for reporting trafficking crimes.
Officials also held a news conference Wednesday to provide the public with details about the programs.
Tapping down the fear many immigrants have of law enforcement agencies is a huge obstacle to getting help for people living and working off the grid, officials say. Many illegal immigrants do not report crimes to police for fear of deportation — which leads to more victimization and more unsolved crimes.
“Their lives are at risk by remaining a victim,” said Alysa Erichs, the acting special agent in charge with U.S. Immigration and Customs Enforcement in Dallas.
With both the T and the U visas, certain family members of the visa-holder may also be granted legal protection to remain in the country. T and U visa-holders who are under 21 years of age may also apply for their parents or their siblings who are younger than 18.
Recipients of the T and U visas are eligible for employment.
To qualify, police or prosecutors have to verify that a crime actually occurred, to cut down on people attempting to trick the system.
“The prosecutor assigned to the case is typically the one sponsoring that the victim has been, or is being cooperative,” said Dallas County district attorney’s office spokeswoman Jamille Bradfield.
The Dallas Police Department “acts as a certifying agency for the petitioner,” said Lt. Scott Walton, department spokesman. “In that role, we do have criteria in place that helps ensure an offense did occur in Dallas and that the complainant is helping to further investigation.”
Jessica Vaughan, director of policy studies at the Center for Immigration Studies in Washington, said she agrees there is a need to protect legitimate crime victims but said the program is ripe for abuse.
“There are many people trying to launder their status by concocting false or frivolous stories of victimization,” she said. “Some police departments will not approve any requests because there have been so many attempts at abuse.”
She favors an audit of a random sampling of cases “in order to assess what kind of individuals are benefiting from the program.”
Vanna Slaughter, head of Immigration and Legal Services for Catholic Charities in Dallas, said in her work with the immigrant community, fraud with U visas is rare, mostly because the documentation required to get approval is so involved.
“Hospital records, police reports, transcripts from the jury trial, even newspaper articles can be included as corroboration that the person is a crime victim,” Slaughter said. “Even then, the service center can request additional evidence.”
The Mexican woman who used the U visa to protect her from her boyfriend’s violence said she believes in the value of the program.
“I didn’t just go through this so I could have a green card,” she said Wednesday during a telephone interview. “Having been a victim of domestic abuse, my main message is not to be afraid. They can be safe and they don’t have to live like that. They can come out of it.”
Hotline number
Contact the 24-hour confidential hotline at: 888-373-7888.

Thursday, September 29, 2011

Asylum Victory: Gang-Related Violence

Paul S. Haar writes: "I thought that you and my colleagues would appreciate the recent (redacted) decision of Immigration Judge John Milo Bryant of the U.S. Immigration Court at Arlington, Virginia in which he applied the recent Fourth Circuit case of Crespin-Valladares in holding that family members of an individual who was the subject of gang-related violence constitute a protected social group meriting a grant of asylum for our client.  A hard-fought case and well-deserved victory."
Paul S. Haar, Esq.
Law Offices of Paul S. Haar
1150 Connecticut Ave., N.W.
Ninth Floor
Washington, D.C. 20036
Tel.: 202/862-4328

Fax: 202/862-4397



Monday, September 26, 2011

Breaking News: TRO Issued In H-2B Prevailing Wage Hike Lawsuit

"Based on the facts set forth in the motion, the complaint, supporting declarations and the memoranda, plaintiffs have sufficiently established that they meet the requirements for a temporary restraining order. Plaintiffs have demonstrated a substantial likelihood of success on the merits that neither defendant is authorized by statute to issue either the Final Wage Rule titled 'Wage Methodology for the Temporary non-Agricultural Employment H-2B Program" (76 Fed. Reg. 3452 (Jan. 19,2011)) or the Final Expediting Rule titled "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program; Amendment of Effective Date" (76 Fed. Reg. 45,667) (Aug. 1,2011 )), these rules are inconsistent with and prohibited by the Immigration and Nationality Act, these rules fail to comply with the Regulatory Flexibility Act, and these rules are arbitrary and capricious. Moreover, plaintiffs will be imminently and irreparably harmed if these ruled were to go into effect, in that certain plaintiff small businesses will be unable to continue employing H-2B employees and, as a result, will be unable to complete existing contracts, which then are likely to be taken over by competitors located in low-cost labor markets. This, in turn, will imperil the continued viability of plaintiff small businesses and create an economic impact on small entities that could exceed $100 million for the fourth quarter of 2011. In contrast, defendants will suffer no harm as a result of this Temporary Restraining Order. Thus, the public interest favors the issuance of a Temporary Restraining Order to maintain the status quo until a preliminary injunction hearing is conducted, and this Temporary Restraining Order is granted with notice in order to avoid further harm to the plaintiffs."

Bayou Lawn & Landscape Services, et al., v. Solis, CASE NO.: 3:11cv445/MCRIEMT, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION, Sept. 26, 2011.

BIB - Daily Edition Gets An Upgrade

Dear BIB - Daily Edition Readers,

Over the past six years you have elevated BIBDE from an obscure blog to a recognized "voice" in the immigration news world.  Now, I am pleased to announce that on Monday, October 3, 2011, BIBDE will "upgrade" and migrate to a new and much more powerful platform: the LexisNexis Immigration Law Community.  As you know, LexisNexis Matthew Bender has always been the sole sponsor of BIBDE, so "sponsorship" remains unchanged.  And whereas before I labored alone, now I will be joined by several skilled technical and legal professionals from LexisNexis and beyond.

The new Community features a variety of content and resources including all of the BIB - Daily Edition content.  The site will feature blogs, podcasts, and commentary from leading immigration law professionals alongside LexisNexis resources such as Immigration Law & Procedure, Bender's Immigration Bulletin and the entire lineup of LexisNexis Matthew Bender immigration publications.

With the launch of this new resource, we will be transitioning users of BIBDE to the LexisNexis Immigration Law Community where you will be able to view all of the same content and more.  BIBDE will redirect to the LexisNexis Immigration Law Community beginning on October 3, 2011.  On that Monday  you will also begin receiving Daily Email Newsletter Alerts from the Immigration Law Community.

The Alerts will contain the same BIB Daily content that you’ve been receiving with the opportunity to include additional content from the Immigration Law Community.

To add additional content to your Daily Newsletter Alert, you will first need to activate your Immigration Law Community account by resetting your password on the following page:  Please use the email address that is associated with your BIB -Daily Edition subscription.

Once you’ve entered your email address and clicked on the “Recover Password” button, you’ll receive a confirmation via email within 15 minutes.  The email confirmation will provide instruction on resetting your password and will direct you back to the Immigration Law Community where you can sign in using your email address and newly established password.

Once you have signed into the Immigration Law Community, you can navigate to the Newsletter page and add additional content to your alert from the Immigration Law Community as well as the other 17 LexisNexis Community sites.

(During this transition, should you have technical questions or problems, please write to Tracie Morris or Gregg Lawson:

We are excited to bring this new experience to you and we look forward to hearing your feedback.  Change can bring challenges, and the new platform is a work in progress, so please let me know how the transition is working for you, and how we can make your ILC experience more rewarding.

Many thanks,

Daniel M. Kowalski

Wednesday, September 14, 2011

Asylum Victory in Chicago: trafficking; Congo, Belgium

Ashley Huebner writes: "On August 9th, 2011, the National Immigrant Justice Center and pro bono attorneys from the Chicago office of McDermott Will & Emery LLP obtained asylum for a woman from the Democratic Republic of the Congo based on the harm that she suffered as a victim of sex trafficking.  This decision was unique in that the majority of the harm that the client suffered occurred in Belgium, where the client was trafficked, and not in the DRC itself.  However, the judge found that this harm was a direct and inevitable consequence of having been trafficked from the DRC and therefore constituted persecution of the client in the DRC.  The judge further held that the client had been targeted for sex trafficking because of her membership in the particular social group of “young Congolese women who have participated in prostitution.”  Finally, the judge found that even if DHS had rebutted the presumption of future persecution, the client was still eligible for asylum because she would suffer “other serious harm” if she were returned to the DRC.  A redacted copy of the decision is attached."  Matter of X-, Aug. 9, 2011.

Ashley Huebner
Supervising Attorney, Asylum Project
National Immigrant Justice Center (NIJC)
A Heartland Alliance Partner
T: 312-660-1303
F: 312-660-1506

Tuesday, September 13, 2011

Unpub. BIA mandatory detention victory in Va.

Thomas K. Ragland writes: "Attached is a BIA decision I just received in a hard-fought case.  DHS charged my client, who was convicted in Virginia of misdemeanor attempted sexual battery, with aggravated felony “sexual abuse of a minor” – and insisted he was subject to mandatory detention.  I challenged the aggfel charge in Immigration Court, the IJ agreed and ordered release on $10K bond.  DHS appealed to the BIA and invoked the automatic stay at 8 CFR 1003.19(i)(2), ensuring he would not be released.  I filed a habeas petition in ED Va. and, one week later, DHS relented and withdrew the automatic stay.  My client was released but DHS aggressively litigated the BIA appeal.  Nearly a year and a half later, the BIA has dismissed DHS’s appeal, agreeing that the conviction is not an aggfel under proper application of the modified categorical approach and controlling Fourth Circuit law.  The BIA also agreed that DHS failed to prove my client is a danger to the community or a flight risk."  Matter of X-, Sept. 8, 2011.

Saturday, September 10, 2011

Unpub. BIA late-filed asylum victory: changed/extraordinary circumstances

"[W]e disagree with the Immigration Judge's determination that, since the respondent had already submitted an asylum application in [date] based upon a fear of persecution on account of his sexual orientation, his discovery of his HIV positive status in [date] could not qualify as a change in the respondent's circumstances that materially affected his eligibility for asylum (I.J. at 7-8). We find that it is a changed circumstance materially affecting his asylum eligibility. We therefore conclude that despite his arrival in the United States in 1998, the respondent should have been permitted to apply for due to his discovery of his HIV status."

Matter of X-, July 14, 2011.  [Hats off to Paul O'Dwyer!]

Monday, September 5, 2011

Another Padilla habeas victory in Texas

Marfa superstar Steve Spurgin writes: "Attached is the first published Padilla decision out of Texas' 11th Court of Appeals.  These Eastland justices understand Padilla and correctly reversed the trial court, mandating ICE's release from detention for my young LPR client - detained for over 18 months - with no other criminal history."

The Court said: "When the deportation consequence is clear, as it is in this case, the duty to give correct advice is equally clear. Padilla, 130 S.Ct. at 1483. Inasmuch as counsel did not give Salazar correct advice, we hold that Salazar has satisfied the first prong of Strickland. ... We hold that Salazar established that he was prejudiced because he would have gone to trial given the correct information about his deportation status and because a decision to reject the plea bargain in favor of a trial would have been rational under the circumstances. Consequently, we hold that Salazar satisfied the second prong of Strickland. ... [C]ounsel's duty to give correct legal advice where the consequences of a guilty plea with respect to deportation are clear carries with it the obligation to investigate what the deportation consequences to the client would be given the client's individual circumstances. ... We reverse the trial court's order denying the writ, vacate the Orders of Deferred Adjudication and Placement on Community Supervision, and remand this cause to the trial court for further proceedings so that Salazar may answer the indictment."- Salazar v. State, Aug. 31, 2011.

Friday, September 2, 2011

AAO Extreme Hardship Victory; Violence In Mexico A Factor

"According to Mr. Y, he does not know much about Mexico and when he has traveled there, he has both witnessed and personally experienced violence. The AAO takes administrative notice that the U.S. Department of State urges U.S. citizens to defer non-essential travel to parts of Mexico, including Sinaloa, where the applicant and Mr. Y contend they would live, due to ongoing violence and persistent security concerns. The U.S. Department of State recognizes that one of Mexico's most powerful transnational criminal organizations (TCOs) is based. in the state of Sinaloa. U.S. Department of State, Travel Warning, Mexico, dated April 22, 2011. Considering all of these factors cumulatively, the AAO finds that the hardship Mr. Y would experience if he had to move to Mexico is extreme, going well beyond those hardships ordinarily associated with inadmissibility or exclusion. The AAO therefore finds that the evidence of hardship, considered in the aggregate and in light of the Cervantes-Gonzalez factors cited above, supports a finding that Mr. Y faces extreme hardship if the applicant is refused admission."  Matter of X-, Aug. 10, 2011. [Hats off to Philip Hornik!]

Tuesday, August 30, 2011

AAO Motion Timing

Doug Stump writes: "I have seen discussion on several list serves suggesting that one only has 15 days to file a Motion to Reopen the revocation of a previously approved petition because the appeal time for such a revocation is only 15 days. The TSC asserted that very argument in the cases underlying the attached decision from the AAO.  The AAO got it right when it held the 30 days set out in 8 CFR 103.5(a)(1)(i) is applicable to revocations. Maybe this will be beneficial to others as well."

T. Douglas Stump
50 Penn Place, Ste. 1320
1900 N.W. Expressway
Oklahoma City, OK 73118

Monday, August 29, 2011

Motion in Limine Victory in S.F.

Francisco Ugarte writes: "I wanted to share with folks a recent written decision granting in part our Motion in Limine, which requested procedural protections for Respondents during their suppression hearing.   While we have filed many of these procedural motions, this is the first time I have seen a written decision on these issues.  In the decision, the Court applies longstanding criminal law procedural principles, which exist in criminal suppression hearings, to immigration suppression hearings.  Similarly, the Court found that while Matter of Barcenas holds that there is no “right to a suppression hearing,” Barcenas does not preclude immigration judges from ordering a hearing designed exclusively to adjudicate the suppression motion.  The only problem is that the judge still provided DHS with an opportunity to provide additional evidence of alienage of Respondents after Respondents made a prima facie case—which, in this case, could mean more than a year after the original motion to suppress was filed.  This could present due process problems (if the evidence was in the possession of DHS but not provided to Respondents until after they fully briefed the issues).  Regardless, I believe this decision can be helpful to others dealing with suppression motions.  I’d like to thank Mike Wishnie and the Yale Immigration Clinic for providing a sample motion, which was helpful in crafting and arguing these procedural law issues."

Francisco Ugarte
Immigration Attorney, Dolores Street Community Services
San Francisco Immigrant Legal & Education Network | SFILEN
938 Valencia St.
San Francisco, CA  94110
Cell:    (415) 571-3470
Fax:     (415) 282-2826

Sunday, August 28, 2011

ICE reminder to local jail re 48-hr detainer rule

Craig R. Shagin writes: "I am attaching an interesting letter [dated Aug. 10, 2011] that was produced following a state habeas action I filed. It is from Director Decker reminding by Fax the Warden of Adams County Prison in Pennsylvania that he is only to hold detainees for 48 hours past the state authorized detention.  I thought this might be an important piece of evidence in any case in which it was important to demonstrate the awareness by ICE of the repeated violations of this requirement by state agencies."

Craig R. Shagin

Shagin Law Group LLC
120 South Street
Harrisburg, PA 17101

Thursday, August 25, 2011

Unpub. BIA Victory in TX: conviction vacated; remand

Michelle Saenz-Rodriguez writes: "Thought I would pass along a good BIA (unpublished) decision George just got on a  recent Padilla case.  The BIA does a nice job of addressing the Pickering standard and why it should be sent back to the trial court  The TA’s office had opposed the motion and the BIA reopened it Sua Sponte." Michelle L. Saenz-Rodriguez -

Friday, August 19, 2011

Editor's Corner: Think Like A Bureaucrat

Aug. 19:  The White House and DHS made a big splash on August 18, 2011 by announcing a new deportation policy.  Under the initiative, some 300K immigration court cases will be reviewed.  Low-priority cases (students, dishwashers, nannies, dry-wallers) may get dumped or shelved, enabling the courts to focus on deporting the real bad guys - "criminal aliens."  And all new incoming cases will be reviewed as well, with the possibility of low-profile cases not being filed with the immigration court in the first place.  Under this initiative, some immigrants may be eligible for work permits until the dust settles.

But how will this play out in the trenches?  To answer that question, think like a bureaucrat.

Those in charge of implementing this new initiative at the ground level are ICE career prosecutors, deportation officers and administrators.  Until now they have made their bones and have been promoted on the strength of how many folks they arrested, detained and deported, and how fast.  Being "bad guys" has been good for their careers.

Now, suddenly, they are being told to be "good guys."  Huh?  If I am an ICE bureaucrat, my first question will be, "How will I (or will I) be rewarded for moving a case from the 'deport' pile over to the 'back burner' pile?"  Until that question is answered very clearly, little or nothing will change, and the policy will be seen as nothing more than a blatant election-cycle play for the Latino vote.  For this to work, ICE bureaucrats will need to know they will be rewarded and protected if they take a DREAM Act-eligible student out of the deport queue.

It's one thing to make a big play for the media at the White House and DHS Secretary level.  Will they follow up with clear instructions to the field - and a reward system - that will stick?

- Daniel M. Kowalski, Editor-in-Chief, Bender's Immigration Bulletin and Bender's Immigration Bulletin - Daily Edition.

Monday, August 15, 2011

Padilla - Coram Nobis victory in Ohio

Neil Fleischer writes: "I won what I thought was a pretty big case in federal court in the Southern District of Ohio that sets some good precedent. I brought a Writ of Coram Nobis which was  granted.  Basically , Judge Spiegel ruled that Padilla v. Kentucky applies retroactively and vacated my client's 1999 bank embezzlement conviction. I assume government will appeal , but right now it is good law."
Neil I. Fleischer Esq.
The Fleischer Law Firm LLC
917 Main Street
Cincinnati, Ohio 45202
(toll free)  1-888-242-1803

Thursday, August 11, 2011

BIA Oral Argument - Report

Attorney Raymond Lahoud, of the Law Offices of Baurkot & Baurkot in Easton, PA, presented oral argument at the BIA on an important aggravated felony issue.  Pasted below are his pre-argument notes, his post-argument report, and links to documents.  Hats off to you, Ray!


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

Dear Friends,

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 & Baurkot 
227 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


Friday, July 1, 2011

Habeas Victory in NJ: Sylvain v. Holder

“Because the Attorney General did not take Petitioner into custody when he was released from incarceration in approximately 2007 (or earlier), but waited to take him into custody until 2011, Petitioner is not subject to mandatory detention under § 1226(c)(1). Instead, Petitioner's pre-removal-period detention is governed by 8 U.S.C. § 1226(a), which authorizes the Immigration Judge to release him on bond. This Court grants a Writ of Habeas Corpus and directs that an Immigration Judge must provide Petitioner with an individualized bond hearing, pursuant to 8 U.S.C. § 1226(a)(2), within 10 days of the date of the entry of the Order accompanying this Opinion.”

et al., Respondents.Civil No. 11-3006 (JAP)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, 2011 U.S. Dist. LEXIS 69591, June 28, 2011, Decided, June 28, 2011, Filed

Monday, June 20, 2011

Saturday, June 18, 2011

Podcast: A view from Canada

Kevin L. Zemp, Canadian attorney and AILA member and partner at Bennett Jones LLP in Calgary, Alberta, Canada, shared with us interesting news about recent changes to Canadian immigration law.

Courtesy of Bender's Immigration Bulletin - Daily Edition.

Podcast: Angelo at AILA AC, San Diego, June 2011

The always engaging Angelo Paparelli took a few minutes out of his busy AILA conference schedule to share his thoughts with Bender readers/listeners.

Courtesy of Bender's Immigration Bulletin - Daily Edition.

Friday, June 17, 2011

Unpub. BIA suppression victory

Anne Pilsbury writes: "Central American Legal Assistance just got a 100% well-written approval of one of our many suppression cases.  Last week we got one going opposite way.  BIA is really split on this issue."

More decisions at

Thursday, June 16, 2011

Remarks by Michael J. Ortiz

Michael J. Ortiz of Los Angeles, Directing Attorney of the Immigration Unit of the Legal Aid Foundation of Los Angeles (LAFLA,) is the recipient of the 10th annual LexisNexis Matthew Bender Tenth Annual Daniel Levy Memorial Award for Outstanding Achievement in Immigration Law.  He gave the following remarks at a reception in his honor in San Diego on June 15, 2011. - Courtesy of Bender's Immigration Bulletin - Daily Edition.

Monday, June 13, 2011

An Open Letter to TX Gov. Rick Perry and the Texas Legislature re S.B. 9

Jesus said, "Be not afraid." Joe Pendleton said, "There's nothing to be afraid of." Real Texans are not afraid of anyone or anything. S.B. 9 is based in fear, fueled by fear and intended to create fear.  Real Texans in the 82nd Leg. should "Just say No" to S.B. 9.  If fearful, fake Texans pass this bill, Gov. Perry - if he's a real Texan - should veto it. - Daniel M. Kowalski, June 13, 2011.

Tuesday, June 7, 2011

AAO I-601 Extreme Hardship Victory; Honduras; Crime

In a decision dated May 12, 2011 the AAO cited the 2010 State Department Country Specific Information-Honduras report, to wit: "Crime is endemic in Honduras... ."  The AAO concluded that the USC spouse would suffer extreme hardship whether she stayed in the U.S. or joined her spouse in Honduras; waiver granted.

Hats off to Carol Pelton of David Ware & Associates.

Wednesday, June 1, 2011

2011 Honoree: Michael J. Ortiz - LexisNexis Matthew Bender Daniel Levy Memorial Award

LexisNexis® Matthew Bender®
Tenth Annual Daniel Levy Memorial Award
for Outstanding Achievement in Immigration Law

2011 Honoree: Michael J. Ortiz

Michael J. Ortiz, Directing Attorney, Immigration Unit, Legal Aid Foundation of Los Angeles (LAFLA), supervises and handles matters in areas of naturalization law, and supervises staff and directly assists clients in cases arising under VAWA, asylees and refugees and victims of human trafficking and torture. Members of LAFLA’s Immigration Unit have worked alongside Mr. Ortiz on behalf of low-income immigrants on various projects: from drafting comments to published USCIS Memoranda that will impact portions of the immigrant community at large, and LAFLA clients in particular, to naturalization workshops serving anywhere from a handful to hundreds of people; from receiving technical assistance from him on writing motions and appeals to co-writing them. His commitment and focus never wavers. This quiet, consistent commitment to low-income immigrants and their struggles is inspiring to others and has changed the lives of many in Los Angeles and beyond.

Award Presentation Reception
AILA Annual Meeting
Wednesday, June 15th, 2011, 8:00 P.M.-9:00 P.M.
America’s Cup, B-D, Fourth Level, Manchester Grand Hyatt San Diego
Refreshments Served

A member of the Editorial Board of Bender’s Immigration Bulletin, Daniel Levy died at the age of 48on September 14, 2001, in Los Angeles after a long battle with cancer. Mr. Levy was a prolific author, litigator, and scholar, and was widely known and loved by many in the immigration bar. With this annual award Matthew Bender® seeks to honor an individual who emulates the values that informed Mr. Levy’s life and work:
- enthusiastic advocacy on behalf of immigrant clients;
- deep scholarship in immigration law; and
- an expansive vision of justice.

Monday, May 30, 2011

Book Review - Train to Nowhere: Inside an Immigrant Death Investigation

Why do immigrants risk robbery, rape, incarceration and even death to enter the U.S. illegally?  Why don't they just "get in line?"  The answer is simple, but the "close the border" folks don't want you to hear it: for a few, the line is decades long, and for most, there's no line at all.

Many fine books have already plowed this sad ground: The Snakehead, by Patrick Radden Keefe; Enrique's Journey, by Sonia Nazario, and my personal favorites, three volumes by Luis Alberto Urrea: Across the Wire, By the Lake of Sleeping Children, and The Devil's Highway.

Now add to your collection this new, different and important contribution to the genre: Train to Nowhere - Inside an Immigrant Death Investigation, by Colleen Bradford Krantz (Ice Cube Press, 2011.)

In 2002 a group of migrants from Central America were smuggled across the U.S.-Mexico border near Harlingen, Texas.  There they were hidden inside empty grain-hopper railcars, presumably for a short trip past Border Patrol checkpoints.  The plan was to release them a few hours later, to resume their journeys into the U.S. by other means.  The plan failed: many of the migrants were discovered and arrested, but one railcar escaped notice and moved on down the line.  By the time it was discovered in Iowa, several months later, all that was left of eleven migrants was their partially skeletonized remains.  They had died horrible deaths by hyperthermia, as the sealed railcar had reached temperatures of 140 degrees and beyond.

Ruled homicides by the authorities, the deaths of the "Denison Eleven," as they came to be known, resulted in federal criminal prosecutions of the smugglers and their accomplices, along with a civil lawsuit against the railway.  Colleen Bradford Krantz, a writer formerly of the Des Moines Register, dug into the case and developed an award-winning documentary for Iowa Public Television in 2010.  Now she has fleshed out the fascinating characters of this true story - the victims and their families in the U.S and abroad, the criminals and the investigators - in a page-turner that all border buffs, immigration scholars and concerned citizens will want to read.  Character-driven, well-written, thoughtful and penetrating, "Train to Nowhere" is a valuable contribution to the study of migration.

For those of us "in the business," and especially those of us who live and work near the border, the suffering of migrants is nothing new.  So it's helpful and re-invigorating to view this ongoing tragedy through the relatively new eyes of the reporters and investigators in the "heartland," in Iowa, for whom, until 2002, the border and its problems had seemed far away and unimportant.

In the late 1960's a British blues band, Savoy Brown, issued a ballad entitled "Train to Nowhere."  The last stanza could have served as a warning to the Denison Eleven: "Please now brother don't you ride this train,
Ride the wrong rails, live your life in vain."

Train to Nowhere: Inside an Immigrant Death Investigation
By Colleen Bradford Krantz
Ice Cube Press (2011)

Colleen Bradford Krantz’s book, “Train to Nowhere; Inside an Immigrant Death Investigation,” is being released this month.  This is Day 1 of her week-long “blog tour.” Join her tomorrow at nonfiction book blog,  “Train to Nowhere” can be purchased at or on Amazon.  Learn more at or follow Colleen on Twitter @bradfordkrantz

Reviewed by Daniel M. Kowalski, Editor of Bender's Immigration Bulletin (LexisNexis) and Bender's Immigration Bulletin - Daily Edition.

Sunday, May 22, 2011

NAIJ Statement for Senate Judiciary Hearing

Statement of National Association of Immigration Judges
Before the Senate Committee on the Judiciary on
“Improving Efficiency and Ensuring Justice in the Immigration Court System”
May 18, 2011

Thursday, May 19, 2011

Comments on proposed H-2B rule revision

AILA, ImmigrationWorks USA, Colorado Ski Country USA and many other organizations and individuals offer comments on DOL's proposed changes to the H-2B regulations.  Excerpts below.

"[W]e conclude that the proposed rule would have significant adverse consequences for a broad swath of American businesses that rely on the H-2B program. Restaurants, hotels, nurseries, landscapers, lawn care companies, forestry businesses, seafood processors, fisheries, golf courses, ski resorts, amusement parks and a variety of construction firms, among others, would find their businesses hamstrung by the new regulations, and their cost of doing business would increase, in many cases dramatically. If the proposed rule is implemented, many companies will stop using the H-2B program. A significant number might go out of business. The consequences for U.S. workers will be exactly the opposite of what the Department of Labor intends: rather than opening jobs for Americans and improving their working conditions, the new rule will force many H-2B employers to downsize or close, shedding U.S. jobs and generating less economic activity up- and downstream in the local economy." - ImmigrationWorks USA

"We are greatly concerned that implementation of the proposed rule will significantly increase the complexity and costs associated with an already complicated regulatory scheme. The proposed changes will make it exceedingly difficult for employers to continue to temporarily supplement their workforces with H-2B workers." - AILA

"The proposed rule would increase the costs and complexity of the H2B program by orders of magnitude and, in doing so, will make the program virtually impossible for law-abiding seasonal employers to use." - CSCUSA

[Full disclosure: I am a native of Colorado, so the ski industry is near and dear to my heart, and our law firm represents many employers that use the H-2B program.  All comments, pro and con, can be viewed and downloaded at]

Tuesday, May 3, 2011

Missing Green Card, ICE Ineptitude Trigger 10 Months in ICE Jail

On page 5 of the Spring 2011 issue of the Florence Project's newsletter you'll find this hair-raising story of ICE ineptitude:

Pro Se Client Released After Immigration Mix Up -By Rachel Kling, Eloy Staff Attorney

“Cesar”, a thirty five year old man from El Salvador, was detained by Immigration & Customs Enforcement (ICE) at the Eloy Detention Center after being arrested for temporary theft of a vehicle. During his initial interview with an ICE officer, Cesar informed him he was a lawful permanent resident of the United States and that his parents were U.S. citizens. He explained that he came to the United States around the age of nine, settling with his family in California, but traveled back to El Salvador when he was a teenager to get his green card. While in El Salvador, he recalled attending a consulate appointment, getting an HIV test and having his fingerprints taken. He also recalled returning to the United States in an airplane, through the Los Angeles Airport, and thereafter receiving his green card.

When the ICE officer tried to verify Cesar’s claims through the agency’s internal database, it came up blank. According to its records, Cesar had no legal immigration history and no application for a green card had ever been filed. Consequently, Cesar was detained in Eloy and charged as removable by ICE. In his first appearance before an immigration judge, Cesar told the judge he believed he was a lawful permanent resident but he had no documentary evidence to support his claim. Proceeding pro se, Cesar struggled to obtain proof of his legal status. He was unable to access his apartment to get any records and his parents no longer had copies of the application, as it had been filed more than twenty years ago.

Eloy staff attorney Rachel Kling worked with Cesar over the next ten months to try to prove his lawful permanent resident status, knowing it would be an uphill battle with only his word as support. Rachel called several of Cesar’s former employers in California, but none had retained records of his legal work status or were willing to release those records. She then filed a Freedom of Information Act (FOIA) request and three months later Cesar received a copy of the petition his father had filed for him in 1990. At Rachel’s prompting, ICE then conducted a further investigation, which revealed that Cesar had been a beneficiary of the Family Fairness Program, a temporary program created in the early 1990’s to help children of permanent residents live lawfully in the United States with their parents. This exciting news corroborated the story Cesar had been telling all along.

Cesar’s struggle was not yet over, however, as ICE argued that the application alone did not show he had completed the process of becoming a permanent resident. Rachel helped Cesar file an additional FOIA request and tirelessly contacted the office of the Ombudsman at U.S. Citizenship & Immigration Service. After much investigation, the Ombudsman’s office reported that the government had mistakenly assigned two different alien registration numbers to Cesar at some point in his immigration history, hence the inaccurate information about him. Once Rachel learned about the alternate alien registration number, she requested ICE conduct another search. This search revealed that Cesar had indeed become a lawful permanent resident in 1992. After ten months in detention, charges against Cesar were dismissed. While detained, Cesar’s grandfather, who cared for him as a young boy in El Salvador, passed away and his mother suffered a heart attack and was hospitalized for several weeks. Cesar is now reunited with his family in California.

[Hats off to attorney Rachel Kling and FIRRP!  Learn more about FIRRP
and then  Please give generously.]

Monday, May 2, 2011

Unpub BIA Padilla remands; pending motions

In at least two unpublished BIA cases, both issued on Jan. 21, 2011, both signed by Board Member Carol King, the Board has remanded due to pending Padilla motions.  Both decisions use the same language: "We find that a remand is warranted so that the Immigration Judge may consider the new evidence pertaining to the respondent's request for post-conviction relief. On remand, the Immigration Judge should receive further evidence to ascertain whether this request was actually filed with the criminal court, which is not apparent on the current record. If the petition for post-conviction relief has been filed with the criminal court, the Immigration Judge should verify its status and should evaluate its impact on the respondent's removability and eligibility for relief. Both the respondent and the Department of Homeland Security may present any and all available relevant evidence to the Immigration Court."  The cases are here and here.

Saturday, April 30, 2011


From Action Comics #900.  News here and here.

Morton Replies to Lofgren re Secure Communities

"Dear Representative Lofgren: I write to express my regret for the confusion regarding the Secure Communities program and the issue of whether a jurisdiction may "opt out" of the program." -Letter dated April 28, 2011.

Friday, April 29, 2011

Constitutional Victory For Shackled Pregnant Mom

"The Court applies Hope, Women Prisoners at D.C., Nelson and Brawley and the undisputed facts to conclude that Defendants' shackling of Plaintiff during the final stages of her active labor and her post-partum recovery, violated the Due Process Clause of the Fourteenth Amendment, given Plaintiffs serious medical condition and the Defendants' indifference to that condition by shackling her during these time periods. The medical proof demonstrates that such shackling was medically necessary and caused unnecessary physical and mental suffering. In addition, under Boretti and Byrd, the Court concludes that Defendants' denial of the breast pump that the MGH provided for Plaintiffs medical care also constitutes deliberate indifference under the Eighth and Fourteenth Amendments as denial and interference with care prescribed by a health care provider. The Court concludes that the Defendants' shackling of Plaintiff in the final stages of her pregnancy and post-partum recovery as well as the denial of the prescribed breast pump, constitute punishment under the Due Process Clause that is also prohibited under Bell. 441 U.S. at 535. ("[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication in accordance with due process law). ... Thus, in addition to the cited judicial decisions, this Court further concludes that these medical publications, convention rules, social studies and standards also establish that the shackling of a pregnant detainee in the final stages of labor shortly before birth and during the post-partum recovery, violates the Eighth Amendment's standard of contemporary decency."

Villegas v. Metro. Govt. et al, Case 3:09-cv-00219, Document 113, Filed 04/27/11, M.D. Tenn., Nashville Dist.

Hats off to Elliott Ozment!  Here's the story in the Tennessean.

Wednesday, April 27, 2011

DHS on NSEERS (forever)

"Because the Secretary of Homeland Security’s authority under the NSEERS regulations is broader than the manual information flow based on country designation that has now ended, the underlying NSEERS regulation will remain in place in the event a special registration program is again needed."

 - Margo Schlanger, DHS Officer for Civil Rights and Civil Liberties, Apr. 27, 2011.

Wednesday, April 20, 2011

APA / Due Process Victory: Asylum Termination Challenge

"[P]laintiff alleges that defendants violated his due process rights by failing to give him specific reasons for their intent to terminate his asylum status. Plaintiff also alleges that he did not have a meaningful opportunity to present evidence in his defense because defendants did not identify the allegations against him or provide access to the evidence against him. The Court finds that these allegations are sufficient to withstand a motion to dismiss."

Courtesy of Bender's Immigration Bulletin - Daily Edition.

Tuesday, April 19, 2011

Unpub. BIA Cancellation Victory - Discretion

A rare case: three-member panel of BIA (Guendelsberger, King, Miller; signed by King) reverses IJ denial of 240A(a) cancellation on discretion: "The Immigration Judge found that the respondent was statutorily eligible for cancellation of removal, but denied it in the exercise of discretion (I.J. at 3, 11). The respondent challenges this decision on appeal and argues that the Immigration Judge failed to properly balance the positive and negative factors under Matter of Marin, 16 I&N Dec. 581 (BlA 1978), and Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998), in determining whether the respondent should be granted relief as a matter of discretion. ... While this is a very close case, upon our de novo review we find that a grant of the respondent's request for cancellation of removal is warranted in the exercise of discretion."  Matter of X-, Apr. 14, 2011.

Hats off to Jose Quintero of CCLS Miami!

Courtesy of Bender's Immigration Bulletin - Daily Edition.