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 - www.sralawonline.com

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
E-Mail:  rgl@bmblawyers.com

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