No Deportation

California Penal Code § 1016.5 - Motion to Vacate Conviction

2009-11-09T15:25:00.000-08:00

Just took on a case involving a Salvadorian National who had lawful status in the U.S. under TPS, (Temporary Protected Status). One of the requirements to maintain TPS status is that any alien cannot be convicted of a felony, or two misdemeanors.

Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).

We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.

The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.

So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.

Enforcement of H-1B Labor Condition Application

2009-10-28T14:42:00.000-07:00

Nonimmigrant Employment Visa - LCA Enforcement

We took on a case involving an Indonesian Native who was sponsored by an Accounting Firm on an H-1B Visa Petition. The company filed the I-129, LCA, and supporting documents, and obtained an approved H-1B Visa for our client from 2008 to 2011.

However, once the visa approval was obtained, then dismissed him and never paid him according to the LCA contracted rate. Under the parlance of the U.S. Department of Labor (DOL), they "parked him." An employer can lawfully "park" one of their H-1B alien employees, but they are required to continue paying that individual.

20 C.F.R. § 655.731(c)(4) states, "If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), . . . the employer is required to pay the salaried employee the full pro-rata amount due, . . . at the required wage for the occupation listed on the LCA."

The only way that an employer can remove their obligation is by complying with 20 C.F.R. § 655.731(c)(7)(ii) which states in pertinent part, "Payment need to be made if there has been a bona fide termination of the employment relationship.INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is cancelled. See 8 C.F.R. § 214.2(h)(11)."

Pursuant to 20 C.F.R. § 655.806, our office filed with the DOL Employment Standards Administration (ESA), Wage and Hour Division (WHD) a Form WH-4 Complaint for all the backpay our client is entitled to.

Ninth Circuit Holds that a Probation Violation Terminates Eligibility for the Lujan Exception

2009-10-01T09:41:00.000-07:00

Sad to report that a recent Ninth Circuit Court decision limits an immigrant's eligibility for the Lujan Exception to a First-time, simple possession narcotics conviction. The original holding in Lujan found that under the Equal Protection Clause of the Constitution, anyone, even an alien should be treated equally under the law.

Estrada v. Holder -

Now that this exception has been caved out of Lujan, it is essential that anyone eligible for relief under Lujan must not violate the terms of their probation or they will still face deportation.

USCIS Denies Family Based Visa Petition under Adam Walsh Act

2009-08-18T12:47:00.000-07:00

Our office has two cases where a U.S. citizen has filed I-130 Petitions for an Immediate Relative, their spouses, only to have USCIS issue intent to deny letters based upon their interpretation of the Adam Walsh Act of 2006.

The letters read in part,
"On July 27, 2006, the President signed the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, to protect children from sexual exploitation and violent crimes, to prevent child abuse and child pornography, to promote Internet safety and to honor the memory of Adam Walsh and other child crime victims.

Sections 402(a) and(b) of the Adam Walsh Act amend section 101(a)(15)(K), 204(a)(1)(A) and 204(a)(1)(B)(i) of the INA to prohibit U.S. citizens and Lawful Permanent Residents who have been convicted of any 'specified offense against a minor' from filing a family-based visa petition on behalf of any beneficiary, unless the Secretary of the Department of Homeland Security determines in his of her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary of the visa petition. "

One of our clients was convicted of statutory rape, which was the result of consentual relations between a girl of 14 and an 18 year old boy, all of which occurred over 20 years ago.

Stay posted on how this case finally resolves. I sense some weighty constitutional issues implicated by Congress enacting this harsh ex post facto penalty and impinging upon a fundamental right to marry.

INA § 287(g) - Turning Local Police into Federal Immigration Authorities

2009-08-12T09:43:00.001-07:00

Homeland Security Secretary Janet Napolitano announced the expansion of the controversial 287(g) program to eleven new locations across the country. This program allows local law enforcement agencies to enter into agreements with Homeland Security’s Immigration and Customs Enforcement, or ICE. It effectively gives local police the powers of federal immigration agents.

Amy Goodman on Democracy Now recently covered this story in her program.

However, what is particularly uncomfortable for me is the convergence between this 287(g) program and the US-VISIT initiative using multiple layers of security, including the use of biometrics, such as digital fingerprints, to establish and verify international travelers' identities. US-VISIT also includes LPR's even though they are not actually seeking admission when crossing the U.S. border.

The use of these two programs in conjunction is creating the "Big Brother" effect that Orwell warned the world about in 1984. US-VISIT database is now linked to NCIC database (the National Crime Information Center) which all local law enforcement agencies check when someone is detained. One example of how this works is the situation of a non-immigrant visitor on a tourist visa who has overstayed their permitted stay. They are a passenger in a vehicle stopped for a routine traffic stop. The officer runs the ID's through NCIC and the visitor's name pops up as an overstay from the US-VISIT database. The officer is commissioned under 287(g) to enforce immigration laws and now takes the visitor into immigration detention and turns the person over to ICE to initiate removal proceedings.

Total information awareness, thank you Admiral Poindexter.

ICE Agrees to Removal Families at Hutto Detention Center

2009-08-10T12:38:00.000-07:00

ACLU Strikes Deal To Continue Humane Conditions At Hutto Detention Center in Texas

The deal comes on the heels of an announcement Thursday that the government will immediately begin ending the detention of families at Hutto, the focus of 2007 lawsuits filed by the ACLU charging that children were being illegally imprisoned under inhumane conditions. The last family is expected to be released from Hutto no later than the end of the year.

The Obama Administration has finally agreed to close this prison where families with children, including babies, had been held in immigration detention, e.g., jail, for months and years. Small children were locked up in prison cells for up to 12 hours a day and only given 1 hour of school education until the ACLU filed suit against the previous Bush Administration polices.

Here is the link:" http://www.aclu.org/immigrants/detention/40648prs20090807.html

Immigration Cartoon

2009-07-31T13:09:00.000-07:00

DHS Reverse Policy on Asylum Applications for Victims of Domestic Violence

2009-07-17T13:31:00.001-07:00

As the New York Times reported July 16, 2009, the Obama Administration, announced in a Supplemental Brief submitted to the Board of Immigration Appeals, a 180 degree reversal from the prior position taken by former Attorney General MuKasey on the question of whether the government recognizes claims for asylum from victims of domestic violence. All of these claims fall under the protection category of "Membership in a Particular Social Group."

The BIA in 1999 issued a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008), which has not conclusively decided the issue of whether asylum claims can be based upon domestic violence.

However, for the first time, the attorneys for the Department of Homeland Security have articulated two scenarios that they acknowledge would fall within the criteria of a grant of asylum. In the brief submitted to the BIA, the DHS attorney states, "the Department will offer here alternative formulations of 'particular social group' that could, in appropriate cases, qualify aliens for asylum or withholding of removal." Pg. 5.

The government brief continues and holds, "that the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship." Pg. 14. DHS puts forward two possible formulations of the social group, "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." Id.

The change by the Obama Administration is dramatic and will potentially open the door to women who have suffered domestic violence at the hands of the abusive spouses. Many thanks to Karen Musalo from the Center for Gender and Refugee Studies at UC Hastings School of Law in San Francisco, California.

VAWA Appeal to Vermont Service Center

2009-07-14T14:27:00.000-07:00

Just received notice from the Vermont Service Center that our office's recently submitted I-290 AAO Appeal of a denied VAWA self-petition will be reopened.

No reason given in the notice, but I suspect that it was the argument made that it is not permitted under the statute to use the testimony of the abuser as forming the basis of denying the VAWA claim. This is an impermissible use and constitutes a Breach of Confidentiality under IIRIRA § 384

Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).

I-290 Appeal of Denied I-360 VAWA Petition

2009-06-18T14:42:00.000-07:00

Just finished an interesting AAO appeal of a denied I-360 VAWA petition to the Vermont Service Center of USCIS.

The government denied our client's I-360 Self-Petition essentially based upon the testimony given by the abuser at the I-130 interview where he intentionally sabotaged the interview so that our client would not receive the immigration benefit and would in fact be ordered deported back to India, where the U.S. citizen abuser would have total control over our client

Our argument was based upon the fact that USCIS explicitly cited to and ultimately based their adverse determination upon the discrepant testimony provided by the USC abuser during the 2007 adjustment interview.

As such, this is a clear violation of the confidentiality provision contained in 8 U.S.C. § 1367(a)(1); IIRAIRA § 384(a)(1).

Furthermore, any breach of these confidentiality laws can be prosecuted under the same statute. “Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section . . . shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more that $5,000 for each violation.” 8 U.S.C. § 1367(c); IIRAIRA § 384(c).

Congress enacted this law and the associated penalties, specifically so that abusers could not use the immigration system as a weapon against domestic violence victims. When immigration officials take action based on information provided by the batterer, as is the case here, they violate the law and contravene the purposes behind VAWA.

The statute holds that CIS cannot deny a VAWA self-petition based on information provided solely by the batterer. See IIRAIRA § 384(a)(1).

In adjudicating our client's I-360 self-petition, she cannot be deemed inadmissible or deported based upon information from her batterer and CIS cannot deny a VAWA self-petition based upon information provided by her USC abuser . See 8 U.S.C. § 1367(a)(1).

Former Interrogator Takes On VP Cheney's Claim for Torture

2009-05-26T12:52:00.000-07:00

Recent Ninth Circuit Decision Reaffirms Lujan Exception to First Offense, Simple Possession Conviction

2009-05-13T08:53:00.000-07:00

The long standing law within the jurisdiction of the Ninth
Circuit is that a first-time, simple possession of a narcotic, does
not subject the alien to removal if the alien would have been
eligible for inclusion under the Federal First Offenders Act [FFOA].
In this instance, Petitioner’s arrest and deferred entry of judgment
for “Attempted Possession of a Narcotic” squarely falls within the
Lujan-Armendariz line of cases. This holding was recently reaffirmed
in a February 4, 2009, decision Ramirez-Altamirano v. Mukasey cited
below.

“[T]he relevant question is whether the person involved could
have received relief under the [FFOA] and does receive relief under a
state rehabilitative statute." Lujan-Armendariz, 222 F.3d at 738
n.18; see also Cardenas-Uriarte, 227 F.3d at 1136 ("If [the
petitioner] would have been eligible for first offender treatment
under federal law, he would not stand 'convicted' for purposes of the
immigration laws."); Dillingham v. INS, 267 F.3d 996, 1006 (9th Cir.
2001) ("[T]he INS may not discriminate against aliens convicted of
simple possession offenses whose subsequent conduct would have
qualified them for FFOA rehabilitation, but for the fact that they
were convicted and rehabilitated under the laws of another
sovereign."). Similarly, when we have denied FFOA treatment to an
alien convicted under state law, it has consistently been because the
alien would not have been eligible for relief under the FFOA.”
Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009).

Special Immigrant Juvenile Visa

2009-04-21T12:32:00.000-07:00

Our office has an interesting new case involving two children who came to the U.S. after their father was killed by India Police after an attack on a bus in the Punjab Province. I have been looking at the possibility of somehow obtaining a Special Immigrant Juvenile Visa for them and ran across this USCIS Memo.

U.S. Citizenship and Immigration Services
Office of Policy and Strategy and Domestic
Operations
Washington, DC 20529-2140
HQOPS 70/8.5

Memorandum

TO: Field Leadership

FROM: Donald Neufeld /s/
Acting Associate Director
Domestic Operations
Pearl Chang /s/
Acting Chief
Office of Policy & Strategy

DATE: March 24, 2009

SUBJECT: Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions

1. Purpose

This memorandum will inform immigration service officers working Special Immigrant Juvenile (SIJ) petitions about new legislation affecting adjudication of petitions filed for SIJ status.

2. Background

On December 23, 2008, the President signed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457, 122 Stat. 5044 (2008). Section 235(d) of the TVPRA 2008 amends the eligibility requirements for SIJ status at section 101(a)(27)(J) of the Immigration and Nationality Act (INA), and accompanying adjustment of status eligibility requirements at section 245(h) of the INA. Most SIJ provisions of the TVPRA 2008 take effect March 23, 2009, although some provisions took effect on December 23, 2008, the date of enactment of the TVPRA 2008.

3. Field Guidance

Eligibility for Special Immigrant Juvenile Status

Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions
Page 2

The TVPRA 2008 amended the definition of a “Special Immigrant Juvenile” at section 101(a)(27)(J) of the INA in two ways. First, it expanded the group of aliens eligible for SIJ status. An eligible SIJ alien now includes an alien:

* who has been declared dependent on a juvenile court;
* whom a juvenile court has legally committed to, or placed under the custody of, an agency or department of a State; or
* who has been placed under the custody of an individual or entity appointed by a State or juvenile court.

Accordingly, petitions that include juvenile court orders legally committing a juvenile to or placing a juvenile under the custody of an individual or entity appointed by a juvenile court are now eligible. For example, a petition filed by an alien on whose behalf a juvenile court appointed a guardian now may be eligible. In addition, section 235(d)(5) of the TVPRA 2008
specifies that, if a state or an individual appointed by the state is acting in loco parentis, such a state or individual is not considered a legal guardian for purposes of SIJ eligibility.

The second modification made by the TVPRA 2008 to the definition of special immigrant juvenile concerns the findings a juvenile court must make in order for a juvenile court order to serve as the basis for a grant of SIJ status. Previously, the juvenile court needed to deem a juvenile eligible for long term foster care due to abuse, neglect or abandonment. Under the TVPRA 2008 modifications, the juvenile court must find that the juvenile’s reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law. In short, the TVPRA 2008 removed the need for a juvenile court to deem a juvenile eligible for long-term foster care and replaced it with a requirement that the juvenile court find reunification with one or both parents not viable. If a juvenile court order includes a finding that reunification with one or both parents is not viable due to a similar basis found under State law, the petitioner must establish that such a basis is similar to a finding of abuse, neglect, or abandonment. Officers should ensure that juvenile court orders submitted as evidence with an SIJ petition filed on or after March 23, 2009, include this new language.

A petitioner is still required to demonstrate that he or she has been the subject of a determination in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.

Age Requirements

Section 235(d)(6) of the TVPRA 2008 provides age-out protection to SIJ petitioners. As of December 23, 2008, if an SIJ petitioner was a “child” on the date on which an SIJ petition was properly filed, U.S. Citizenship and Immigration Services (USCIS) cannot deny SIJ status to anyone, regardless of the petitioner’s age at the time of adjudication. Officers must now consider the petitioner’s age at the time of filing to determine whether the petitioner has met the age requirement. Officers must not deny or revoke SIJ status based on age if the alien was a child on the date the SIJ petition was properly filed if it was filed on or after December 23, 2008, or if it was pending as of December 23, 2008. USCIS interprets the use of the term “child” in section 235(d)(6) of the TVPRA 2008 to refer to the definition of child found at section 101(b)(1) of the INA, which states that a child is an unmarried person under 21 years of age. The SIJ definition
found at section 101(a)(27)(J) of the INA does not use the term “child,” but USCIS had previously incorporated the child definition at section 101(b)(1) of the INA into the regulation governing SIJ petitions.

Consent

The TVPRA 2008 also significantly modifies the two types of consent required for SIJ petitions.

Consent to the grant of SIJ status (previously express consent)

The TVPRA 2008 simplified the “express consent” requirement for an SIJ petition. The Secretary of Homeland Security (Secretary) must consent to the grant of special immigrant juvenile status. This consent is no longer termed “express consent” and is no longer consent to the dependency order serving as a precondition to a grant of SIJ status.

The consent determination by the Secretary, through the USCIS District Director, is an acknowledgement that the request for SIJ classification is bona fide. This means that the SIJ benefit was not “sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or
neglect or abandonment.” See H.R. Rep. No. 105-405, at 130 (1997). An approval of an SIJ petition itself shall be evidence of the Secretary’s consent.

Specific consent

The TVPRA 2008 completely altered the “specific consent” function for those juveniles in federal custody. The TVPRA 2008 vests this function with the Secretary of Health and Human Services (HHS) rather than the Secretary of the Department of Homeland Security as previously delegated to Immigration and Customs Enforcement (ICE). In addition, Congress simplified the
language to refer simply to “custody,” not actual or constructive custody, as was previously delineated. However, the requirement remains that an SIJ petitioner need only seek specific consent if the SIJ petitioner seeks a juvenile court order determining or altering the SIJ petitioner’s custody status or placement. If an SIJ petitioner seeks to obtain or obtains a juvenile
court order that makes no findings as to the SIJ petitioner’s custody status or placement, the SIJ petitioner is not required to have sought specific consent from HHS. Therefore, on or after March 23, 2009, officers must ensure that juveniles in the custody of HHS obtained specific consent from HHS to juvenile court jurisdiction where the juvenile court order determines or
alters the juvenile’s custody status or placement. USCIS will provide HHS guidance regarding adjudications of specific consent as soon as it is available.

Due to the complex nature and changing requirements of specific consent determinations, USCIS Headquarters (HQ) is temporarily assisting in making the determination on specific consent requirements. As outlined in the February 20, 2009 guidance email, Field Officers are instructed to forward certain documents to HQ for those SIJ petitions that may involve specific consent that are filed prior to March 23, 2009. HQ will notify the Field Office of the decision on specific consent. The Field Office will then complete adjudication of the petition. This temporary guidance providing HQ assistance with specific consent determinations will remain in effect until further notice.

Expeditious Adjudication

Section 235(d)(2) of the TVPRA 2008 requires USCIS to adjudicate SIJ petitions within 180 days of filing. Field Offices need to be particularly aware of this new requirement and take measures locally to ensure timely adjudication. Officers are reminded that under 8 CFR 245.6 an interview may be waived for SIJ petitioners under 14 years of age, or when it is determined that
an interview is unnecessary. Eliminating unnecessary interviewing of SIJ petitioners may help in expeditiously adjudicating petitions. Necessary interviews should be scheduled as soon as possible. During an interview, an officer should focus on eligibility for adjustment of status and should avoid questioning a child about the details of the abuse, abandonment or neglect suffered, as those matters were handled by the juvenile court, applying state law. Under no circumstances
can an SIJ petitioner, at any stage of the SIJ process, be required to contact the individual (or family members of the individual) who allegedly abused, abandoned or neglected the juvenile. This provision was added by the Violence Against Women Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006) and is incorporated at section 287(h) of the INA. Officers must ensure proper
completion of background checks, including biometric information clearances and name-checks.

Adjustment of Status for Special Immigrant Juveniles

The TVPRA 2008 amends the adjustment of status provisions for those with SIJ classification at section 245(h) of the INA, to include four new exemptions. Approved SIJ petitioners are now exempted from seven inadmissibility grounds of the INA:

* 212(a)(4) (public charge);
* 212(a)(5)(A) (labor certification);
* 212(a)(6)(A) (aliens present without inspection);
* 212 (a)(6)(C) (misrepresentation);
* 212(a)(6)(D) (stowaways);
* 212(a)(7)(A) (documentation requirements); and
* 212(a)(9)(B) (aliens unlawfully present).

On or after March 23, 2009, none of the above listed grounds of inadmissibility shall apply to SIJ adjustment of status applicants.

Officers are reminded that this list of exemptions is in addition to the waivers available for most other grounds of inadmissibility for humanitarian purposes, family unity, or otherwise being in the public interest. The only unwaivable grounds of inadmissibility for SIJ petitioners are those listed at INA 212(a)(2)(A)-(C) (conviction of certain crimes, multiple criminal convictions, and controlled substance trafficking (except for a single instance of simple possession of 30 grams or
less of marijuana)), and 212(a)(3)(A)-(C), and (E) (security and related grounds, terrorist activities, foreign policy, and participants in Nazi persecution, genocide, torture or extrajudicial killing).

4. Use

This guidance is created solely for the purpose of USCIS personnel in performing their duties relative to adjudication of applications. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantial or procedural, enforceable at law by any individual or any other party in removal proceedings, in litigation with the United States, or in any other or form or matter.

5. Contact Information

This guidance is effective immediately. Please direct any questions concerning these changes through appropriate supervisory channels to Rosemary Hartmann, Office of Policy and Strategy or Tina Lauver, Office of Field Operations.

Distribution List: Regional Directors
District Directors
Service Center Directors
Field Office Directors
National Benefits Center Director

Justice Bybee's Torture Memo

2009-04-03T09:21:00.000-07:00

Bybee Torture Memo

The full text of Ninth Circuit Court of Appeals Justice Jay Bybee's Torture Memo, dated August 2002 is linked above. I find it fascinating that an LDS (Mormon) trained attorney (BYU School of Law) and a member of this same faith is directly responsible for the use of torture, including water-boarding, by the U.S. Government and the subsequent shame and international condemnation rightfully heaped onto the Bush Administration for its blatant violation of fundamental human rights.

Ninth Circuit Associate Justice Jay Bybee to be Indicted by Spanish Court for Crimes Against Humanity

2009-04-02T09:30:00.000-07:00

A Spanish court has initiated proceedings that are likely to result in criminal charges against six top legal officials in the Bush administration for their role in crafting the justifications for the use of unlawful detention, torture and other internationally outlawed methods in the "war on terrorism."

The accused include former White House counsel and later US Attorney General Alberto Gonzales and former Justice Department lawyer John Yoo, who authored the infamous "torture memo" that justified waterboarding and narrowly defined torture as acts that "would result in death, organ failure, or serious impairment of bodily functions." Also charged is Yoo's former boss in the Justice Department's Office of Legal Counsel Jay Bybee; former Under Secretary of Defense for Policy Douglas Feith; former General Counsel for the Department of Defense William Haynes; and David Addington, who was the former chief of staff and legal advisor to Vice President Dick Cheney.

Jay Bybee is now a sitting justice on the Ninth Circuit Court of Appeals and under the imminent threat of having an extradiction order issued for his arrest for his involvement in the torture of detainees in U.S. custody.

A Spanish human rights group, the Association for the Dignity of Prisoners, filed the legal case on March 17 in Spain's National Court (Audiencia Nacional). The court gave the case to Judge Baltasar Garzón, who gained international fame in 1998 for issuing an arrest order for Augusto Pinochet for the murder, disappearance and torture of Spanish citizens under his military dictatorship in Chile. Pinochet was held under house arrest in Britain for a year and a half until the British government finally rejected Spain's extradition request and allowed him to return to Chile.

Garzón has already turned the 98-page complaint over to state prosecutors for review, and lawyers close to the case have stated that it is almost inevitable that a criminal investigation will proceed, potentially resulting in orders for the arrest of the six US officials, placing them in jeopardy of facing the same fate as Pinochet if they travel abroad.

The complaint argues that Spain has jurisdiction to try the American officials under universal jurisdiction, the same principle invoked in the Pinochet case, which holds that actions so heinous that they rise to the level of crimes against humanity may be tried by any court in the world.

As in the Pinochet case, however, the complaint also anchors its claim on jurisdiction to the fact that five Spanish citizens were victims of the policies crafted and justified by the accused, having been held without charges in Guantánamo and subjected to torture.

It also argues that the US use of torture to extract confessions had forced the Spanish Supreme Court's acquittal of all five of the former Guantánamo detainees, whom Garzón himself had charged with having links to Al Qaeda. This connection provides Garzón with grounds for reopening the case and charging the six former American officials, including Justice Bybee.

Mexico Follow-up

2009-03-27T10:31:00.000-07:00

I just finished writing my brief in support of a direct case appeal to the Board of Immigration Appeals (BIA) for a client who has a claim under CAT - Convention Against Torture. The IJ denied his application for relief holding that despite proving past torture, which included water-boarding, burning of his skin with cigarettes, physical beating, and electro-shock to his genitals by members of the Mexican Federal Judicial Police, that he could safely relocate within Mexico, or alternatively to given testimony to the anti-corruption police.

Our argument basically stresses the fact that corruption inside of Mexico is not incidental, but in fact systemic throughout the judiciary and law enforcement to such an extent that he cannot safely go anywhere in Mexico where the cartels cannot find him. This fact is inescapable given that the Mexican Head of Interpol himself was recently arrested for taking $120,000 a month from the cartels and now Interpol is investigating whether their entire network has been compromised by the criminal gangs.

As Ken Bode of the Indianapolis Star reported on Mach 27, 2009, "In the past few years, drug cartels have grown so greatly in wealth, power and influence that they actually control some parts of the country. They have infiltrated and corrupted every level of Mexican law enforcement to the point that federal police, the army and local police no longer trust each other. A recent study of 400 federales revealed that 90 percent had ties to the cartels."

This is precisely my argument to the BIA, that any return of our client will lead to his renewed persecution and torture as there is realistically no place in Mexico where he can safely return.

Mexico As "Failed State"

2009-03-18T16:11:00.001-07:00

U Non-Immigrant Visas

2009-03-05T11:17:00.000-08:00

Started working on a "U" Visa, USCIS Form I-918, for a client who tipped off the police about rampant drug dealing going on inside of her store. The police raided the location, made numerous arrests and broke up a fairly high-level drug distribution network. After the police arrests, the aliens started receiving death threats and were forced to relocate and go into hiding.

There is not much information out there on how to file the application and a lot of the police departments are still trying to figure out how to fill out the Supplement "B" Form of the I-918 Application that really is the heart of the U Visa. I will keep the blog posted on how the application proceeds.

I called my friend who is specializing in "U" Visas and currently has over 15 applications on file.

The only meaningful discussion is the Sept. 5, 2007 Fact Sheet put out by USCIS.

Here is the link:
USCIS Fact Sheet

My First Year Study Partner Makes the Headlines

2009-02-13T15:29:00.000-08:00

In an amazing turn of events, my fellow first year law school study partner, David Xue, has made the headlines. I would have thought that David learned more about contract law during our torturous first year contracts class with Professor John J. Osborn, who is famous for writing the novel "The Paper Chase" during his law school education at Harvard.

Here is the link:
The News Story About My Partner, David Xue

Stay tuned.

AAO Appeal of Denied I-140 Petition

2009-01-28T09:43:00.000-08:00

Last Monday, I finished a I-290B appeal of a denied I-140 Immigrant Petition for an Alien Worker of "Extraordinary Ability."

Yes, I know this is not a deportation matter, but I have not handled many deportation matters recently as my time is more and more being sucked up by commercial law litigation involving breached contracts and monies owed.

However, this appeal to the USCIS AAO (Administrative Appeals Office) in Washington, D.C. is interesting as my client is a Ph.D. Mathematician who is at the cutting edge on integrating computer technologies in the teaching of Calculus and differential equations. His focus is on allowing the student to "see" and visualize the complex relationships is real time so the non-mathematics student can work with real world applications, e.g. engineers, chemists, etc. Currently, my client holds the position as the Chair of the Computer and Mathematics Department in a prestigious university in Lebanon

The USCIS Nebraska Service Center Director, F. Gerard Heinauer, strictly applied the regulations in 8 C.F.R. § 204.5(h)(3) against all mathematicians and concluded that my client did not meet the definition of an alien of extraordinary ability in 8 C.F. R. § 205.5(h)(2) which states, "a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor."

In my appeal, I argued that the Service Center Director erred in not considering his field of endeavor as that of a mathematics education and not as a mathematician. Looking through that filter, my client can establish that he is at the forefront of this change in the pedagogical methodologies of how math is taught in higher education.

I will keep you posted on how this appeal is decided.

Holiday Blues

2008-12-23T12:38:00.000-08:00

I feel that I have neglected by blog for some time now because I have not had any interesting new immigration/deportation issue come across my desk. So as an alternative I will briefly blog about my most recent reading material, Psychology & Religion by Carl Jung.

In his discussion of religion, Jung makes a clear distinction between religion which he calls "a peculiar attitude of the human mind . . . that is, a careful consideration and observation of certain dynamic factors, understood to be 'powers,' spirits, demons, gods, laws, ideas, ideals or whatever name man has given to such factors as he has found in his world powerful, dangerous or helpful enough to be taken into careful consideration, or grand, beautiful and meaningful enough to be devoutly adored and loved," and a creed.

Jung describes as creed as "codified and dogmatized forms of original religious experience. The contents of the experience have become sanctified and usually congealed in a rigid, often elaborate, structure. The practice and the reproduction of the original experience have become a ritual and an unchangeable institution."

Detention of U.S. Citizen Without Charges

2008-11-18T09:44:00.000-08:00

Did U.S. push detention of American without charges?

Jonathan S. Landay | McClatchy Newspapers

last updated: November 18, 2008 08:48:41 AM

WASHINGTON — An American Muslim subjected to several years of intense FBI scrutiny and questioning about links to terrorism has been held without charges, access to a lawyer or contact with his family for nearly three months by the security services of the United Arab Emirates.

The case of Naji Hamdan, coupled with FBI interrogations of an American citizen secretly detained without charges in East Africa, raises the question of whether the Bush administration has asked other nations to hold Americans suspected of terrorism links whom U.S. officials lack the evidence to charge.

That allegation is central to a lawsuit that the American Civil Liberties Union was planning to file Tuesday in federal court in Washington against President Bush, Attorney General Michael Mukasey and FBI Director Robert Mueller.

"If the U.S. government is responsible for this detention and we believe it is, this is clearly illegal because our government can't contract away the Constitution by enlisting the aid of other governments that do not adhere to the Constitution's requirements," said Ahilan Arulanantham of the ACLU's southern California office.

The lawsuit, to be brought on behalf of Hamdan's wife and brother, demands that the U.S. government extend to Hamdan his constitutional guarantee against illegal detention by asking the UAE to release him.

"The most elemental legal principles by which we govern ourselves cannot countenance the lawless detention of a United States citizen at the behest of his own government," said a draft of the lawsuit provided to McClatchy by the ACLU.

A spokesman for the FBI's Los Angeles office, Alonzo Hill, referred all inquiries about Hamdan, a former resident of the city's Hawthorne neighborhood, to FBI headquarters in Washington, saying, "This is a counter-terrorism case."

FBI headquarters disputed the allegation that it had asked the UAE to arrest Hamdan but acknowledged that it routinely interviews detainees held in foreign jails.

"The FBI does not ask foreign nations to detain U.S. citizens on our behalf in order to circumvent their rights," said Special Agent Richard Kolko, a spokesman. "In terrorism matters, we routinely work with foreign counterparts and in some cases, with the permission of the host government, FBI Agents have been permitted to interview people who may possess relevant information."

A State Department spokesman said the department had been aware of Hamdan's detention and that a U.S. consular officer visited him nearly two months after he was arrested.

The UAE Embassy said in an e-mail to McClatchy that all questions should be directed to the police in Abu Dhabi, the UAE sheikhdom where Hamdan is being held, because the case "is related to a police/security matter, which involves a private U.S. citizen."

Abu Dhabi, one of seven oil-rich sheikdoms, has cooperated closely with the Bush administration in cracking down against Islamist extremists following the 9/11 attacks.

Hamdan is a 42-year-old naturalized U.S. citizen who immigrated to California from Lebanon in the early 1980s to attend university on a scholarship, worked as an aircraft technician and then opened a used auto parts business in Hawthorne, where he served on the board of a local mosque.

Hamdan's interaction with the FBI began in 1999, when agents visited him at his Hawthorne home and asked if he knew Osama bin Laden. The incident was recounted in a Los Angeles Times article on aggressive tactics used in FBI terrorism investigations.

Hamdan's wife, Mona Mallouk, and brother, Hossam Hemdan, insisted that he's never had any terrorism involvement or been charged with any crime despite the longtime FBI scrutiny.

"Naji hates war. He hates what happened on September 11. He hates terrorism," Mona Hamdan said in a telephone interview from Beirut, Lebanon, where she and her children are living.

Hamdan moved to Abu Dhabi in 2006 and set up a business of importing used cars doing car repairs, but then moved his family to Beirut and traveled between the two countries.

In August, he was questioned at the U.S. embassy in Abu Dhabi by two FBI agents who flew out from Los Angeles. Several weeks later, UAE officials detained him, Mallouk and Hossam Hemdan said.

Hemdan, who owns automobile emissions testing stations in Los Angeles, said he arranged for Hamdan to meet the agents at the FBI's request.

"He (Hamdan) said 'That's fine, I'll see them,'" Hemdan recalled, adding that his brother later declined to discuss the meeting, except to say that "the agents know all this stuff about me and you and other people."

"I believe they are intercepting my phone calls and emails," Hemdan said of the FBI.

On Aug. 28, UAE security officers took Hamdan away as he, his wife and three children ate lunch in their Abu Dhabi apartment on the pretext of bringing him to a police station to sign papers related to a car accident, Mallouk said.

She said that when her husband failed to return, she began a fruitless search for him at police stations.

"I called the U.S. embassy . . . the next day. I was crying. They didn't seem to care," she related. "They said they would call back in an hour, but they didn't call me back for six or seven days."

The consular officer who telephoned confirmed that the embassy was aware of Hamdan arrest the day it occurred, said Mallouk, who hasn't spoken to her husband since he made a brief call to her shortly after his arrest.

The case finds echoes in the secret detention in Kenya last year of Amir Mohammad Meshal, a New Jersey resident who was arrested fleeing the U.S.-backed Ethiopian invasion of Somalia.

Meshal, who had spent time in Somalia with suspected Islamic extremists, was interrogated by FBI agents in Nairobi, secretly flown back into Somalia, turned over to Ethiopian intelligence officers and then flown to the Ethiopian capital of Addis Ababa, where he was imprisoned three months before being released without charges.

"I think you see a trend that reflects illegal detentions going underground or off the books, where the United States . . . out-sources detentions to other governments," said Jonathan Hafetz, an ACLU attorney who's involved in the Meshal and Hamdan cases.

Hemdan said the FBI visited his brother, himself and other Muslims in Hawthorne after the Sept. 11 attacks, showing them pictures of the hijackers and asking if they knew them. Agents called on Hamdan once at home and twice at his business, he said.

The brothers' names were placed on watch lists at airports and they would be pulled aside and interrogated about ties to terrorist groups every time they entered or left the U.S., Hemdan said.

In 2006, Hamdan and his wife moved to the UAE. She said Hamdan was frustrated over the FBI's scrutiny, and both were concerned about drugs and other problems at high school their eldest son was due to attend.

At Los Angeles International Airport, they and their luggage were rigorously searched and they were subjected to lengthy questioning that made them miss their flight, according to Mallouk.

In the UAE, Hamdan set up a used car and auto repair business. But he decided to move the family to Beirut because they have close relatives there and the UAE was too hot, she explained.

Last year, during a visit to Hawthorne, Hamdan came under intense FBI surveillance, according to Hemdan, with agents watching the brothers' businesses, tailing them in automobiles and questioning their friends.

"Where ever he went, they chased him, government vehicles with black windows," said Hemdan. "From my perspective, they wanted him to see them. They'd drive over the (lane) dividers and over curbs. They wanted to be seen so he gets scared and leaves. It's like 'You are not welcomed here.'"

"I told him to go to the Federal Building (in Los Angeles) and talk to the FBI. I gave him the number and he called and left a message, but they didn't call him back," he continued.

Earlier this year, Lebanese security officers detained Hamdan at Beirut airport as he prepared to board a flight to the UAE after visiting his family. They later ransacked the family's house and confiscated two computers, a video game, papers and photos, Mallouk said.

Her husband was "slapped" while being interrogated for four days, during which he was accused alternatively of being an al Qaida member or working for Israeli or U.S. intelligence, she said. Khalid, 16, was also questioned for three hours.

Hamdan was released without charges.

Writ of Error (Coram Nobis) to Vacate State Narcotics Conviction

2008-11-12T11:32:00.000-08:00

We are still trying to obtain the release of a client who has been in immigration detention since last July on account of a deferred entry of judgement in a simple possession narcotics case in state court. ICE has maintained that he is subject to mandatory detention throughout his deportation proceedings. We have appealed to the 9th Circuit and our opening brief is due sometime in February 2009.

However, his public defender has been feverishly working to try an vacate this plea agreement before the trial judge. His last effort is to try a Writ of Error, or (Writ of Coram Nobis). The case law holds that if this writ is granted based upon a substantive factual error, this will removed the conviction off the record and he can obtain his release.

"A conviction overturned for substantive, non-immigration reasons may not be used as the basis for removability. See Nath v. Gonzales, 467 F.3d 1185, 1187-89 (9th Cir. 2006) (“[A] conviction vacated because of a procedural or substantive defect is not considered a conviction for immigration purposes and cannot serve as the basis for removability.” (internal quotation marks and citation omitted)); see also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107-08 (9th Cir. 2006) (remanding for consideration of whether conviction was vacated on the merits or because of immigration consequences)"

Furthermore, "the government bears the burden of proving whether a state court reversed or vacated a prior conviction for reasons other than the merits. Nath, 467 F.3d at 1189; Cardoso-Tlaseca, 460 F.3d at 1107 n.3 (“[F]or the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove with clear, unequivocal and convincing evidence that the Petitioner’s conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e. to avoid adverse immigration consequences.” (internal quotation marks and citation omitted)).

Violation of a Grant of Voluntary Departure

2008-09-24T15:39:00.000-07:00

One of our clients is a stateless individual, he is a citizen of no country, who arrived inside of the U.S. and requested political asylum. His request for asylum was denied and he was ordered removed. The Immigration Judge granted him voluntary departure, but since he had no passport or valid travel document to actually leave the U.S.

A little background, our client is ethnically Palestinian, born to Palestinian parents who were living in Saudi Arabis on temporary employment visas. Saudi does not grant citizenship to Palestinians who happen to be born within their country. So, when our guy left Saudi Arabia and remained out of the country for more than 6 months, he could no longer return to Saudi. Saudi Arabia does not even issue a passport to such a situated Palestinian, he was required to petition the Egyptian Consulate for temporary travel papers.

So the fact on the ground is now, our client is under a final order of removal, violated his Voluntary Departure order, and currently on supervised release, deferred entry of action by the local Immigration and Customs Enforcement Field Office.

We currently have a Petition For Review before the Ninth Circuit Court of Appeals, and we have been placed in mediation because our guy has an approved I-130 Immigrant Visa based on marriage to a USC. So the question for us is whether our client can even adjust his status if we win and obtain a remand for adjustment.

The BIA decision on point is Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), which holds that if the aline fails to depart. through no fault of their own, cannot be said to have "voluntarily violated" the period of voluntary departure.

They hold that someone who is "physically unable to depart" falls within the "voluntariness exception" to INA 240B(d)(1), however, there has been no decision on this prong. Our guy may be the test case.

Voice From a Raid

2008-09-03T12:44:00.000-07:00

Coming on the heels of the ICE raid on Howard Industries in Mississippi, I thought this video clip was interesting on the aftermath of such a raid by the federal authorities.