No Deportation

Update on Sustaire Case

2012-01-24T13:45:00.000-08:00

Late last week, our office received the DHS Office of Chief Counsel's response to our motion to reopen, based on ineffective assistance of counsel in our Korean family's case. In a surprise to me, the local ACC (Assistant Chief Counsel) did not object to the reopening for the wife's motion, as she was not involved in the underlying fraud by Leland Sustaire at the USCIS San Jose Field Office.

This was welcome news as she has two minor children, born in the US, who can now stay with their mother in the US, if the BIA agrees to reopen and remand to the Immigration Court. We still have a good faith argument for the father, however, the ACC did object.

ICE Officials’ Sporadic Exercise of Prosecutorial Discretion

2012-01-03T11:56:00.000-08:00

A recent survey conducted by the American Immigration Lawyers Association, (AILA), to nobody's surprise, found that U.S. Immigration Customs Enforcement (ICE) has a spotty record of applying prosecutorial discretion.

The survey concluded that ICE officers and attorneys across the country are applying different standards on prosecutorial discretion despite the issuance of national policy memoranda this summer. The report, which includes information about all 28 ICE offices nationwide, shows that most ICE offices have not even implemented the two headquarters' memos. These discrepancies reflect a need for ICE and Department of Homeland Security (DHS) leadership to issue additional guidance to its rank and file.

"We felt that ICE's June 2011 memoranda about the use of prosecutorial discretion in certain types of immigration cases were clear and straightforward," said AILA President Eleanor Pelta. "But," Pelta continued, "These survey results show that ICE agents and attorneys are not willing to use the discretion they are responsible for implementing without further guidance. They are asking for more, and the agency's leadership should help them get it," said Pelta.

The June 17, 2011, memo outlines for ICE agents and attorneys the factors that would deem an immigration case a low priority for enforcement action. They include ties to America including service in the U.S. armed forces, schooling, contributions to the community, and other equities for enforcement officials to consider when deciding what course of action to take in a particular case.

What AILA seemingly found is an institutional aversion to applying any form of discretionary relief to the immigrant community. Many ICE officers and attorneys are actively resistant. Some officials said their jobs are "to arrest and deport." So the rank-and-file ICE officers are continuing unabated in their wholesale efforts to deport as many people and quickly as possible, even in the face of leadership that is telling them to slow down and not to tear families apart.

Immigration is Watching Social Media Site

2011-12-09T11:14:00.000-08:00

It is critically important to always remember that Government Agencies are trolling the Social Media websites to investigate people applying for immigration benefits. The Electronic Frontier Foundation obtained a memorandum from the Office of Fraud Detection and National Security (FDNS) stating the policy of using social media site to obtain information. The memo was titled, Social Networking Sites and Their Importance to FDNS. The memo contains specific advice to federal agents on how to "friend" a user and thereby gaining access to otherwise restricted content. The memo states that "narcissistic tendencies in many people fuel a need to have a large group of friends link to their pages."

Social media permits federal agents an excellent vantage point to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. "Once a user posts online, they create a public record and timeline of their activities."

Saw My First Leland Sustaire Case Last Week

2011-11-22T13:59:00.000-08:00

The office ran across our first Sustaire case. The Korean family had exhausted their appellate proceedings, the Ninth Circuit panel had issued the Memorandum in their petition for review and the Mandate was set to issue today. The clients came in last week, asking if anything could be done in their case.

It started in 1991, when the husband, obtained his LPR status by using an immigration broker who took $10,000 and ostensibly filed an I-140 on his behalf as an EB-3 worker. He even went so far as to interview at the San Jose INS Office and received his Green Card. However, the broker was paying off the Supervisor of the Adjustment Section inside the INS office, Mr. Leland Sustaire.

As reported by the LA Times in 2003:

SAN JOSE — For 12 years, Leland Sustaire was the fix-it man, a veteran U.S. immigration supervisor who accepted $500,000 in bribes from two immigration brokers to authorize green cards for South Korean immigrants throughout California.

The scheme fell apart in 1998 when a nervous Sustaire turned himself in, agreeing to wear a hidden microphone to help indict Korean American brokers John Choe and Daniel Lee. Both were convicted of fraud and bribery in 1999 and sentenced to three years in prison. For Sustaire's cooperation, prosecutors argued that the 54-year-old former official should avoid time behind bars: He was sentenced to six months in a halfway house and six months' home confinement.

Even worse, when reviewing his testimony, Mr. Sustaire avoided any jail time for his fraud, he got to keep all of the illicit money he collected over the years, somewhere in the range of $500,000 to $650,000, and he got a free pass on having to pay any taxes to the IRS on this loot. However, the lives of the approximately 270 families he ruined did not get such a sweet deal.

The family we saw last week had been represented by a well-known San Francisco lawyer who arguably botched the case. At the hearing on the merits, he asked for a INA § 212(k) waiver, to which the Koreans were not even eligible to obtain, instead of asking for an INA § 237(a)(1)(H) waiver, which would have forgiven the fraudulent method in which the Green Card was obtained and grandfathered the green card back to the adjustment date. Then, compounding this error, the attorney missed the filing deadline for the Opening Brief at the Board of Immigration Appeals, the BIA never considered the brief, yet he gave the clients a copy of the brief, with the late time stamp from the BIA and led them to believe it had been filed on time.

Needless to say, we filed a motion to reopen with the BIA on the basis of ineffective assistance of counsel. We are keeping out fingers crossed on this one as the Board is always loath to reopen such an old case.

Stop-Time Rule for Cancellation

2011-10-19T13:36:00.000-07:00

One of the more arcane, gotcha rules out there is the so called "Stop-Time Rule," which pretermits the consideration of a EOIR-42A or EOIR-42B Application for Cancellation of Removal. Every time I get one of these types of cases, I need to carefully review the regulation and applicable case-law on this point and the rules are different depending upon whether the application is for an LPR or a non-LPR.

So, the other day, I am asked to look at someone who initially entered the US as a student and then married a USC and adjusted to an LPR. They seem to have a psychological condition where they want to take things that do not belong to them. Kleptomania. Many theft offenses, and all of them a CIMT's (Crimes Involving Moral Turpitude).

So the statutory eligibility for filing this relief is:
1. "Lawfully admitted for permanent residence" for 5 years; and
2. Resided in the US continuously for 7 years after having been admitted in any status. INA § 240A(a)(2).

The "Stop-time rule" for an LPR, applies only to the seven-year continuous residence issue and 'does not apply to the five-year requirement." Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006) and "has no other bearing on the other requirements for cancellation of removal, including the issues of qualifying relatives, hardship, or good moral character."Matter of Bautista Gomez, 23 I&N Dec. 893, 895 (BIA 2006).

So in my case, the fact that our client had entered the US many years ago on F status, as a student, meant she had enough time in continuous residence to qualify and the other five-year requirement is deemed to end upon service of the notice to appear and not the actual date of the offense. INA § 240A(d)(1)(A), meaning our client qualifies for this form of relief.

U.S. Supreme Court to Hear Oral Arguments on Oct. 12th in Immigration Case Involving Question of Whether LPR is Eligible for 212(c) Waiver

2011-09-30T11:29:00.000-07:00

SCOTUS is hearing oral arguments in immigration case out of the Ninth Circuit in Judulang v. Holder, Docket No.: 10-694, on issue of whether Lawful Permanent Resident who plead guilty to manslaughter in 1989, was eligible for INA § 212(c) waiver relief.

In reading the memorandum from the Ninth Circuit, the primary claim for relief by the petitioner seemed to be one of derivative citizenship through his parents, both of whom naturalized. However, the record below seems to indicate that his mother did not naturalize until he turned nineteen.

The question certified for review is:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.

The Ninth Circuit held that petitioner was not eligible because under the INA as it existed at the time, there was no substantially similar statutory counterpart for aggravated felony crimes of violence in the grounds for exclusion in former INA § 212(a), and therefore Judulang was ineligible for a waiver under § 212(c).

The Ninth Circuit held that Judulang’s argument is foreclosed by the court's decision in Abebe v. Gonzales, No. 05-76201, 2007 U.S. App. LEXIS 16191, at *32-35 (9th Cir. July 9, 2007). "In Abebe, we concluded that lack of a substantially identical statutory counterpart in § 212(a) for aggravated felony sexual abuse of a minor among the grounds for exclusion rendered the alien ineligible for § 212(c) relief. Id. Abebe is controlling."

Here is the link to the SCOTUS page and all of the submitted briefing before the court.

Another Win - Maybe a Shifting Tide on the Deportation Front

2011-09-23T12:59:00.000-07:00

Our office took on the case of an alien who had been ordered deported many years ago. She was unaware of this fact because she came with her parents as a small child and her parents filed an asylum application with her as a rider, or derivative asylee, and their case had finished with a final order of deportation.

She went to public schools, had a social security card, in fact obtained a scholarship to attend a public university. Her parents never informed her of their immigration proceedings. She went on to marry a U.S. service member in the Air Force and was living on the base in Northern California.

She went back to visit her family in the Mid-West and while she was there, ICE raided the family home with arrest warrants for the entire family. Everyone was deported to their native country except her, because she was with her USC husband and step-daughter. This is how the case was presented to our office, final order of removal, in custody, and all appeals had been exhausted.

We filed a motion to reopen with the BIA, asking the Board to reopen so that she could file her own I-589 asylum application and alternatively, so that she could adjust her status based upon her marriage to a USC.

The legal basis for this motion was to permit an aged-out asylee to file an initial asylum application on her own behalf, pursuant to 8 C.F.R. § 208.14(f):

The denial of an asylum application filed by a principal applicant for asylum shall also result in the denial of asylum status to any dependants of the principal applicant who are included in that same application. Such denial shall not preclude a grant of asylum for an otherwise eligible dependant who has filed a separate asylum application.

Much to my surprise and amazement, the Board just granted our motion, over DHS objection, and remanded back to the Immigration Court so that she could adjust her status.

Maybe the tide is beginning to turn in the recent and continuing relentless push to deport everyone out of status.

My Professional Profile:

2011-09-16T10:51:00.000-07:00

My Professional Profile:: Check out my LawPivot profile!

Gripping Narrative of One Individual Deportee - In His Own Words

2011-09-08T09:01:00.000-07:00

I just ran across this story today on Huffingtonpost and thought I should rebroadcast the story because it is a firsthand account of what happens and what it feels like to be picked up and put through the ringer by ICE.

The Story Of A Young Artist's Deportation: "In The Land That Saw My Birth, But Is No Longer My Own."

by Dani Zamora, Artist and graduate of Grinnell College, born in Mexico, raised in the U.S.

To my kind Friends,

Pardon any spelling and grammatical mistakes, this was written on my phone during a 19hr ride to Cd. Juarez.

On the morning of August 8th, 2011, my boyfriend Eric and I made a wrong turn. Unfortunately, for me, this would be a point of no return. While on our way to South Padre Island, in the southeastern tip of Texas, we were stopped by an immigration officer. It seemed just like a regular check -- making sure we were not smuggling weapons, drugs, or people. They questioned Eric and had me stay still in the car with my hands on the dashboard. They checked the trunk and under the car, then things got weird.

A total of three more border patrol trucks came by and Officer Johnson* simply took a look at me and asked to see some form of identification. I reached for my wallet and pulled out my California issued identification. He walked away with it, checked it, and I overheard them say that there was nothing wrong.

He then input my name in his database. He came back to me and told me to stop lying to him. He wanted me to admit that I had just crossed the border. I told him I wasn't lying. He told me to step out of the vehicle. He gave me an ultimatum and told me that if I did not tell him the truth, he would press other charges against me. He turned to Officer Castillo and told him to take me with. I faced the car, put my hands behind me, and felt the handcuffs close around my wrists. Their reasons? They told me there were many people with my name who were criminals and had warrants out for their arrest.

Eric looked at me in disbelief. He looked as if he were waiting to wake up from a horrible nightmare. I smiled, I him it would be okay. What was there for me to fear? I had a job permit, a social security number, a state issued ID and had a clear record. As they put me in their truck, forcing me to sit back with my wrists aching from the handcuffs, I smiled one last time at Eric knowing it would all be over soon. This was a misunderstanding.

I was transported to an immigration processing office in McAllen, Texas. I was stripped of my belongings. My prints and my pictures were taken. They pulled about every single criminal record they couldfind which correlated in any way with my name and birth date and nothing showed. I saw them print blank page after blank page. All they said to one another was "still nothing".

And then he arrived. Their supervisor. He ordered them to pull up my immigration case files, I could tell this was an unusual proceeding, since the officers had no idea on how to do it. After waiting over an hour sitting in a concrete bench, they found something. Something I was unaware of until that point. Something that if I would had known, I could have fixed. Something that in a second crushed my dreams.

According to the case file, in 2003 I was issued a departure order. They told me it would have come in the mail, but I had no inkling of such a letter ever reaching me. Perhaps it got lost in transit. It did not matter. I was told I would have to leave the country voluntarily or go to jail and wait until I could get a hearing -- but they said it would take months before they could process me.

You know how they say your heart breaks? Well, I don't think it does. I think your heart hardens. I felt it. My heart became heavy as a stone, and I felt it slowly drag down from my chest to my stomach.

I asked to make a phone call, and I called Eric. He had followed us to the station and waited in the lobby. I told him what they'd found, I told him I had never heard of the departure order, and I told him I was Mexico-bound. His voice shook, told me not to leave, to stay -- to fight this. I am not cut out for jail and I was not ready to let a judge decide my fate. His last words still ringing in my ear, "I'm sorry," he said, "I ruined your life." I could hear his pain and his tears. But I tried to remain calm. I told him it was okay, and I would be back.

I signed my departure papers, and waited for the officers to finish their paperwork. I put my head down, and for the first time, I cried. I thought of the things that had just happened -- the things I could have done, the things I still had to do. But nothing, nothing made me feel any better.

The officers showed me to cell 9, a 10x20 concrete box with a metal toilet in the back. In the cell, Jesus and Miguel. They both had been detained that day, Jesus during his second attempt to cross, and Miguel during his third. They both had families waiting for them in Dallas -- families who had not talked to them in weeks. But they kept their faith. They knew they would be reunited again.

I sat on the cold concrete, staring at the wall. The wall was covered in writing: people professing their love for others, the names and dates of when they had been there, the names of their children, parents, espouses. Passages of the bible in Spanish, English, and Chinese. And I stared at that wall, wondering at the fate of all those people. Had Mariano Lopez been able to cross the border successfully and see his three children in Arlington, VA? Was Ramon with his daughters Mariela, Lucrecia, and Maggie?

One of the other detainees looked at me and asked me plainly if I was ok. The answer was plain and simple. I was not.

Dinner finally came to us, a thick piece of foul looking and smelling ham in two slices of white bread accompanied by a cooler of water. I asked for the time. The officer told me I shouldn't worry, that I'd be back in Mexico in no time. And my hunger died. The thought of the life I had just left behind filled the gap in my stomach as my heart got heavier and pushed down.

After a very long wait we were taken to a bus. Jesus sat next to me and assured me I would be alright. He then told me he also had been born in Veracruz. How the economy had taken a downturn and everything seemed to be collapsing except for a few people who were wealthy before and now were getting richer. It made sick. But that's the way economics work, even in the U.S. of A., I suppose.

We talked about his children, 2 and 5 years old, both born in Dallas. And I thought of the injustice it is to leave two kids fatherless, without means to fend for themselves other than one of the parents minimum wage income.

We arrived at the East Hidalgo Detention Facility. We were filed into the waiting room where we put our belongings into a big trash bag. We walked to a long hallway and we were given a brown suit to mark us as temporary holds, a thin blanket, a sparsely woven linen sheet, a 2" unbreakable toothbrush, a travel sized toothpaste and soap, and a roll of toilet paper. It was, by this time, 11:30pm. Splitting us in two groups, the guard showed us to a small 10x10 room and told us to change. It was amazing to see her lack of kindness, her eyes cold and unexpressive. We kept our shoes, and I noticed that everyone else's shoelaces had been taken away as means of preventing them from hurting themselves. I looked at my feet, naked with the sandals I had hoped would have been perfect to use at the beach.

I closed my eyes, and began to cry. I fell asleep for what seemed like countless hours when in reality it was only three. I woke up to a loud knock on the door but did not want to open my eyes, I wished with all my heart that I would wake up next to Eric on our bed.

The guard knocked again, he could not have been older than 23, and when I sat on my bed, he slid a food of tray in. On the tray, a stale biscuit, sweet beans, and, the only edible thing, green beans from a can. Time passed by once again, all I could do was watch the walls. Masterpieces by themselves, if taken out of context.

Once again, and this would not be the last time, they moved us to a different room where we waited and waited, and waited. At last, a guard came to get us, in groups of four. We stepped into the lobby area and awaited to enter another room where a gentleman from the Mexican Consulate was waiting to ask us some questions. One by one I saw those before me enter the room, and then came my turn.

I stated my name as asked, my date of birth, my place of birth. He then asked me how many times I had tried to cross the border, I responded none. He showed signs of being confused, as if he did not know what to write down. He asked if I needed him to notify someone of my departure, I gave Eric's cell phone number. He asked me what my address was. That's when I cracked.

"My address," as tears trailed my cheeks, "is 8600 FM 620 N, Austin, TX," I said. He shook his head and told me no, he wanted to know what my address in Mexico was. And I lost it. Between sobs I reinstated my address. I could picture BB, my cat, coming over and jumping on my lap, purring loudly as I caressed her ears. She, encompassing all my life was. My high school years in Los Angeles. My life in Grinnell College as a Posse Scholar.The life I had with Eric. The life I had designed after graduating college and deciding to stay in Iowa. My newly made life in Texas. My life as an artist.
I stepped out of the room, devastated. Having finally understood that this was the point of no return. That I would set foot in Mexico and perhaps never see my cat, Eric, or any of my beloved friends at home again.

I returned back to the room with the others, and waited for a very long time. We were given our tray of corn, cabbage, a fishy smelling brownie, and pasta with some sort of mystery meat. I could only eat the vegetables. My heart sunk as low as it could go. And the wait continued. We were moved again to the room where we first changed, they needed the rooms for other men who had been captured. Their faces also lacking any hope. That place completely drained hope.

In the small room, I encountered Jesus. He asked me if I would cross the border illegally, and I said no. I would come back to my loved ones the way I should. I would apply for reentry and hope for the best. I had faith in the legal system, I said, I believe it punishes, but it can also reward.

A couple hours later, we were rounded up outside the room, we faced the wall, and on went the cuffs around my feet. The metal chain hitting the floor and pulling the cuffs down cutting into my ankles. Then I was made to turn around, and my wrists were bound and held close to my belly by yet a another heavier chain that went around my waist.
I could hardly walk, and then we were pushed back into the small room. Overcrowded, hot, with no windows or airflow, we waited, I was able to sit down, but few had such a pleasure. The metal rings around their hands and feet making it impossible to move. We stayed like that for two hours until finally a bus came. We were taken to the bus in the order we had come in. The walk, an impossible feat. And we boarded the bus.

We rode the bus for another hour or so, till we reached a small commercial airport.A plane landed, and the guards came back inside, taking us to the concourse. There we saw a large passenger plane. 29 windows, of five seats rows. It unloaded many passengers either being released or being taken to the facility from which we came. And when they were all down, their buses gone, we started, one by one, in the order we had arrived, our way up to the plane.

The security team by AKAL formed two lines flanking the plane, and one by one we made our way to be patted down. My turn came and I stepped towards a young blond lady who greeted me with a frown. Her first question was if I spoke English, to which I replied yes. She ordered me to open my mouth and asked if I had any piercings as she patted me down. She then asked me how long I had been in the U.S. I told her 11 years. She seemed surprised. I told her I was leaving all I'd worked for behind, but I looked forward to have it back. She smiled, said my English was very good and I should be back. Just make sure you don't get caught this time, was her advice.

We flew from that far east Texas town all the way to Yuma, Arizona, 29 of us in a giant air craft. A great use of our tax money, if you ask me. We were given dinner, the white bread sandwich with ham and a small water bottle.

When we landed, I knew the journey would be over soon, I was eager to talk to Eric, to my mom and dad. We landed and were taken to another bus, this one at least had a step stool for the impossible climb up. The bus took us behind a building, to the dark area of parking lot, the guard instructed us, this time in Spanish, that we would step out, in groups of four and have our chains removed. Foreign relations, he said. As my chains came off my heart rose up. As if somehow hope had been restored. I stepped back to the bus this time as a hopeful man.

We rode the bus along the U.S. - Mexico border, a great rusted metal wall, which otherwise would had been an amazing Richard Serra installation. The wall that prevented many dreams from coming true, the wall that would come to signify the separation from my youth.

And so we arrived at the Calexico crossing bridge. We, among many, to step onto Mexican land as if for first time. And my mind was racing for the fight to come. The Mexican flag fluttered in the air, and it reminded me of the pledge of allegiance I said everyday in school. One nation under God, indivisible, with freedom and justice for all. But where had my freedom and justice been these last two days? The struggle was about to begin.

I stepped out of the bus, collected my bag with my wallet and phone, and set foot, for the first time in 11 years, in the land that saw me be born but no longer felt my own.

With all due respect,

Dani Zamora

Syracuse University Report on Asylum Rates of Indiviudal Immigration Judges

2011-09-01T13:19:00.000-07:00

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University released information about the asylum decisions of 233 individual judges in the nation's special Immigration Courts. This report is available in an updated application developed by TRAC their website.

What is interesting to note, the overall denial rate of all asylum petitions in 53.2% during the latest period reviewed, 2006-2010. However, if the alien is not represented by an attorney, as 11% of all asylum seekers were, then that subcategory's denial rate rises to 88%.

In our immigration courts in San Francisco, IJ Murry leads the pack in denying over 90% of all the asylum cases he hears.

This is the link for the full statistics of all the IJ's across the country.

TRAC website

President Obama Announces New Priorities for DHS and Deportation

2011-08-18T14:49:00.000-07:00

In a Press Release, the White House announced that they would be changing the priorities of DHS to no longer actively seek the deportation of noncriminal aliens, with the announcement that it would halt potentially thousands of cases in federal immigration court if they do not involve criminals or people with flagrant immigration violations.

Homeland Security Secretary Janet Napolitano said today that the agency will launch a case-by-case review of 300,000 cases pending in immigration courts across the nation to focus on the federal government’s top priority, detaining and deporting criminals and serious violators of immigration law.

Immigrants classified as low-priority cases could receive a stay of deportation and the chance to apply for a work permit.

The following is the full text of the Press Release of today.

"President Obama is deeply committed to fixing our immigration laws and has been aggressively searching for partners in Congress who are willing to work with him to pass a new law. As he focuses on building a new 21st century immigration system that meets our nation’s economic and security needs, the President has a responsibility to enforce the existing laws in a smart and effective manner. This means making decisions that best focus the resources that Congress gives the Executive Branch to do this work. There are more than 10 million people who are in the U.S. illegally; it’s clear that we can’t deport such a large number. So the Administration has developed a strategy to make sure we use those resources in a way that puts public safety and national security first. If you were running a law enforcement agency anywhere in the world, you would target those who pose the greatest harm before those who do not. Our immigration enforcement work is focused the same way.

Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States. And they have succeeded; in 2010 DHS removed 79,000 more people who had been convicted of a crime compared to 2008. Today, they announced that they are strengthening their ability to target criminals even further by making sure they are not focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home. It also includes individuals such as military veterans and the spouses of active-duty military personnel. It makes no sense to spend our enforcement resources on these low-priority cases when they could be used with more impact on others, including individuals who have been convicted of serious crimes.

So DHS, along with the Department of Justice, will be reviewing the current deportation caseload to clear out low-priority cases on a case-by-case basis and make more room to deport people who have been convicted of crimes or pose a security risk. And they will take steps to keep low-priority cases out of the deportation pipeline in the first place. They will be applying common sense guidelines to make these decisions, like a person’s ties and contributions to the community, their family relationships and military service record. In the end, this means more immigration enforcement pressure where it counts the most, and less where it doesn’t – that’s the smartest way to follow the law while we stay focused on working with the Congress to fix it."

Here is the Link to the Press Release

General Zapata's Grandson is an Undocumented Alien Working as a Busboy in Texas

2011-08-12T15:29:00.000-07:00

Amazing story on the wire today about the heroic Mexican Martyr, General Emiliano Zapata's grandson who has been working for the last 10-years as an undocumented illegal alien busboy in Dallas, Texas.

General Zapta is still revered to this day around the world for the ideals and principles he brought to the Mexican revolution, and for his passionate defense for the land and liberty of dispossessed peasants everywhere.

His cause was joined by millions of poor Mexicans, driven by their common belief that “la tierra es de quien la trabaja” -- the land is for the person who works it. They represented a fundamental challenge to the wealthy and powerful -- and ultimately led to President Venustiano Carranza’s order to assassinate Zapata in 1919.

The son of the revolutionary leader, Diego’s father did not see much of General Zapata during his childhood, as the patriarch was always participating in peasant organizations and campaigns. “I remember the day he took my three brothers and I to register, as an aunt kept insisting, since we did not have birth certificates and were only accepted in schools as observers,” recalled Diego, who is now 46 years old.

His brothers and mother now all live in the U.S. Two of them are also undocumented; Jorge Gabriel, who lives in North Carolina and works as a gardener, and Diego Emiliano, who makes sandwiches at a deli in New York City.

The third brother, Alex Eufemio, is a naturalized U.S. citizen and a chef at a French restaurant in Brooklyn. He was the only family member able to travel to Mexico for their father’s funeral in 2008. Through Eufemio, their mother, Gloria Cordero, acquired permanent U.S. residence and works in a chicken processing plant in North Carolina.

Like his grandfather Emiliano Zapata, Diego was born in Anenecuilco, in the state of Morelos in Mexico, where he lived until he was 13 and his parents separated.

The full story is here.

Ninth Circuit Overrules Lujan Exception

2011-07-25T14:42:00.000-07:00

Last week, in an en banc decision, the Ninth Circuit Court of Appeals overrruled the court's previous decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) in extending the same equal protection afforded citizens under the Federal First Offender's Act (FFOA) to non-citizens when considering the immigration consequences of a simple first-time narcotics offense.

Prior to this ruling, in the Ninth Circuit, a non-citizen would not be deported for a simple, first-time narcotics offense, such as under the influence, paraphenalia, or a possession charge. This exception has now ended and any non-citizen will be subject to deportation for any narcotics conviction, even a Prop 36 offense in California.

The full text of the decision is below.

Nunez-Reyes v. Holder

U.S. Department of Labor - Administrative Law Judge Rules in Our Client's Favor and Awards $160,000 in Back Pay

2011-07-07T11:02:00.000-07:00

Major win in one of our office's cases involving back pay for an H1-B non-immigrant foreign national employee. Our office filed an U.S. Department of Labor complaint, which was initially denied after the Sacramento Field Office Investigator, Sheila Creel, found no violation of federal immigration law. We appealed the decision to the DOL Office of Administrative Law Judge.

After a trial in early June, we received the written decision last week, which found all of our claims to be true and awarded our client around $160,000 in back pay, with interest.

Here is the link to the published decision

The ALJ ruled in our favor because the employer had never perfected a bona fide termination of our client and therefore remained liable for all back pay under the Labor Certificate Application they had signed under oath.

Here are the relevant CFR's and case law on this point.

Huang v. Ultimo Software Solutions, Inc., ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11, slip op. at 4 (March 31, 2011) (affirming the ALJ's finding that the employer \never effected a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii), as it must to be relieved of its obligation to pay [the beneficiary's] wages ); Amtel Group v. Yongmahapakorn (Rung), ARB No. 07-104, ALJ No. 04-LCA-006, slip op. at 2 & n. 4 (Jan. 29, 2008) [hereinafter Amtel II] (Order Denying Reconsideration); Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039, slip op. at 5 6 (Mar. 30, 2007); Amtel Group of Florida, Inc. v. Yongmahapakorn (Rung), ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 9 12 (Sept. 29, 2006) [hereinafter Amtel I];see also 65 Fed. Reg. 80,171 (Dec. 20, 2000) (The Department agrees that an employer is no longer liable for payments for nonproductive status if there has been a bona fide termination of the employment relationship.

The Department would not likely consider it to be a bona fide termination for purposes of this provision unless INS has been notified that the employment relationship has been terminated pursuant to 8 CFR 241.2(h)(11)(i)(A) and the petition canceled, and the employee has been provided with payment for transportation home where required by section 214(E)(5)(A) of the INA and INS regulations at 8 CFR 214.2(h)(4)(iii)(E). (italics in original)).

But see, Administrator, Wage & Hour Division v. Ken Technologies, Inc., ARB No. 03-140, ALJ No. 2003-LCA-15, slip op. at 4 5 (Sept. 15, 2004) (indicating that failure to notify the immigration authorities is not conclusive on the issue whether the employee was terminated). The Board es more recent decisions such as Amtel I, slip op. at 11 12, can't be reconciled with the idea that a bona fide termination can occur without all three elements. Yet the Board hasn't explicitly receded from Ken Technologies. 31 8 C.F.R. § 214.2(h)(11).

A regulation of the Secretary of Labor repeats the requirement an employer with an approved labor condition application must inform the immigration authorities \that the employment relationship has been terminated so that the [H-1B] petition is cancelled, incorporating that same immigration regulation. See 20 C.F.R. § 655.731(c)(7)(ii).

Hearing Before OALJ - DOL

2011-06-08T16:02:00.000-07:00

Last Thursday, I represented the Prosecuting Party in a claim for an H1-B employment violation. Our office represented the foreign national who was the beneficiary of an I-129 petition for non-immigrant worker, status as an H1-B skilled professional.

The petition was approved for three years. However, before the employee's status as an H1-B began, the employer terminated the position. We filed a US Department of Labor complaint alleging the Respondent has impermissibly "benched" our client in violation of 20 C.F.R. § 655.731(c)(7)(i), as there was no bona fide termination because USCIS had never been notified and the H1-B status had not been cancelled.

The precedent decision on this question is Amtel Group of Florida v. Yongmahapakorn, ABR No. 04-087, ALJ No. 2004-LCA-006, 2006 WL 2821406 (ARB Sept. 29, 2006), at *7 (finding the Employer did not achieve bona fide termination within the meaning of the regulations and, therefore, did not terminate its liability for back wages when it fired an H1-B employee, but failed to notify INA of this termination in accordance with 8 C.F.R. § 214.2(h)(11).

We will receive the judge's decision within the next 30 days, but I am very hopeful of a win. The counsel for the Respondent Employer kept arguing for "offset" to the damage award.

Kurt Miller, Esq. Asylum Fraud Case - Seeking INA § 212(i) Waiver

2011-05-19T14:37:00.000-07:00

Our office took on the representation of a former Kurt Miller, Esq. client. The client had obtained asylee status sometime in 2000. Later the client married a USC and the couple has a child together.

When the spouse filed an I-130 petition, USCIS sat on the application and did not reach a decision for approximately 4 years. After being summoned to the Field Office for a frauds interview, the client admitted to the Officer that they did not supply any of the documents submitted in support of the I-589 application. They admitted that Kurt Miller had provided everything, including the declaration. which they were to memorize.

Obviously, USCIS held that person inadmissible for procuring an immigration benefit through fraud and/or material misrepresentation, under INA § 212(a)(6)(C)(i). The client had hired another attorney to file an I-601 Hardship Waiver petition under INA § 212(i) and the Field Office denied the application.

The client then came to our office and we filed both an I-290B Motion to Reopen / Reconsider, along with new documentary evidence to support the claim of Extreme Hardship for the qualifying USC relative. Also, in the abundance of caution, we filed an appeal to the AAO, Administrative Appeals Office in Washington, D.C.

Recently, we received the denial of our I-290B Motion to Reopen/Reconsider and today I finished the appellate brief of points and authorities to the AAO, arguing that the hardships must be considered in the aggregate, not singularly, and adjudicated in the totality of the circumstances.

I further moved the AAO to consolidate the two appeals presently pending.

I am cautiously optimistic about this appeal.

First Crack in Federal Immigration Bar to Same-Sex Partner Benefits

2011-05-05T13:28:00.000-07:00

Today, Attorney General Eric Holder, Jr. vacated and remanded the Board of Immigration Appeals precedent decision barring any immigration benefits to same-sex partners. The decision is called Matter of Dorman 25 I&N Dec. 485 (A.G. 2011).

In this decision, the AG has remanded the decision back to the BIA for additional findings on the question of whether domestic partnership of same-sex relationship qualifies for cancellation of removal. This is the first crack in the once solid wall barring any immigration benefits to same-sex partners. As our law practice is in the San Francisco Bay Area, this decision is of especial importance to our office.

The full decision can be found here.

Ninth Circuit Over Turns BIA Post-Departure Bar Rule in 8 CFR § 1003.2(d)

2011-05-02T08:46:00.000-07:00

In a published decision, post on April 7, 2011, the Ninth Circuit Court of Appeals overturned the Board of Immigration Appeals Post-Departure Bar Rule, in 8 C.F.R. § 1003.2(d), which the BIA has consistently held to strip them of jurisdiction to an alien's Motion to Reopen or Reconsider once the alien has been physically removed from the U.S.

What this rule has in practice meant, is that once someone has been issued a final order of removal, ICE will use any and all means to physically remove someone before the BIA has to rule on any Motion to Reopen, especially if the have a prima facie showing of ineffective assistance provided by their former counsel.

The case name is REYES-TORRES v. HOLDER. The holding language is as follows:

After reviewing the statutes, we determined that “the intent of Congress is clear,” and that “in passing IIRIRA, Congress anticipated that petitioners would be able to pursue relief after departing from the United States.” Coyt, 593 F.3d at 906. As such, we held that:
The only manner in which we can harmonize the provisions simultaneously affording the petitioner a ninety day right to file a motion to reopen and requiring the alien’s removal within ninety days is to hold, consistent with the other provisions of IIRIRA, that the physical removal of a petitioner by the United States does not preclude the petitioner from pursuing a motion to reopen.
Id. at 907.

ICE Attorney Sentenced to 17 Years In Federal Prison for Immigration Fraud

2011-03-24T14:05:00.000-07:00

Shocking story out of the EOIR Los Angeles Immigration Court that a senior government attorney, representing Homeland Security was engaged in immigration fraud. ICE Assistant Chief Counsel Constantine Peter Kallas, 40, of Alta Loma, received a 17⅔-year sentence from United States District Judge Terry J. Hatter Jr yesterday in federal court.

“Mr. Kallas has received one of the longest sentences ever seen in a public corruption case,” said United States Attorney André Birotte Jr. “Mr. Kallas took in hundreds of thousands of dollars in bribes—money he obtained by exploiting his knowledge of the immigration system. The lengthy sentence reflects the seriousness of the crimes, which were a wholesale violation of the public trust.”

Following a three-week trial, a federal jury in April 2010 convicted Kallas of three dozen felony counts—conspiracy, six counts of bribery, two counts of obstruction of justice, seven counts of fraud and misuse of entry documents, three counts of aggravated identity theft, nine counts of making false statements to the Department of Labor, four counts of making false statements to obtain federal employee compensation, and four counts of tax evasion.

“This case presents an epic display of a public official’s greed,” prosecutors wrote in a sentencing memorandum filed with the court.

“As a corrupt prosecutor, [Kallas] calculatingly terrorized the idea of justice and the concept of public service,” the memorandum continued. “[Kallas] carried out his crime scheme through elaborate forms of manipulation, lies, and obstructive conduct.”

He charged his housekeeper $7,000 and then told the immigration judge that she had provided material testimony in another matter and the court terminated deportation proceedings.

The full Press Release Is Here

Oral Arguments Tomorrow Before the First District Court of Appeals

2011-03-01T15:39:00.000-08:00

Tomorrow I have 20 minute oral argument before the First District Court of Appeals, where I represent the Appellant in an appeal of his criminal conviction for one count of violating Penal Code section 182(a)(1) - conspiracy.

The issue raised on appeal is whether the prosecution is time barred, as the initiation of the proceeding tolled by virtue of obtaining an arrest warrant, was more than 3 years after the Last Overt Act in furtherance of the intended conspiracy.

The AG's Office is contending that conspiracy to commit computer fraud is subject the the statute of limitations for the substantive offense, computer fraud. Which under Penal Code section 801.5 and 803(c) is both tolled until the discovery of the fraud and the subject to a 4-year statutory period.

My claim is that under California Case Law, the crime of conspiracy is a stand alone and separate inchoate crime, which the courts have held to be subject to the 3-year period, pursuant to Penal Code section 801.

However, there does not seem to be a case directly on point and this is the issue presented before the court.

Exception to the Harsh Consequences of the Adam Walsh Act's Bar to Immigration

2011-02-14T13:53:00.000-08:00

There is a very interesting legal argument to be made concerning the standard of review USCIS imposes on a petitioner seeking a discretionary grant to the Adam Walsh Act ("AWA") prohibition for an immigration benefit.

In interpreting the statutory mandate that a discretionary exception to an AWA bar be available to a petitioner who poses “no risk” to the alien beneficiary, the Service has adopted, as a matter of policy, the highest possible burden of proof—beyond a reasonable doubt. Does the use of this heightened burden go beyond the express terms of the statute? And is it a permissible use of the agency’s discretion?

Last year, the AAO reaffirmed the long understood principle that a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I & N Dec. 369 (AAO 2010), citing Matter of Martinez, 21 I & N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings).

The only exception to this default standard would be those instances where a different standard was specified by law (for example, the heightened standard for proving the bona fides of a marriage entered into during proceedings).

The AWA contains no language heightening the standard of proof. Therefore, it can be argued that the AWA should properly be read to require that a petitioner who has been convicted of a specified offense against a minor submit evidence that demonstrates, by a preponderance of the evidence, that he or she poses no risk to the safety and well being of the beneficiary.

Arizona Style Law Already on the Books for Interrogations by Immigration Officers

2011-02-04T09:07:00.000-08:00

I was looking at the rules governing a Motion to Suppress Evidence in an immigration court, such as a non-voluntary statement, and the rules governing the Fourth Amendment and the Exclusionary Rule as they pertain to the immigration proceedings, and much to my surprise, the courts, even the Ninth Circuit, has already given broad powers to immigration officers to interrogate anyone suspected of being an alien.

It is only a small step to giving the same powers to a state law enforcement officer. Interesting con law issue, but much closer than I would have suspected initially.

"Any immigration officer has the power, without warrant, to interrogate any alien or person believed to be an alien as to his or her right to be or remain in the United States." INA § 287(a)(1); 8 C.F.R. § 1287.5; Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959); Matter of Pang, 11 I&N Dec. 213 (BIA 1965).

"There is no requirement that the officer must have probable cause for such an inquiry." Matter of Perez-Lopez, 14 I&N Dec. 79 (BIA 1972).

Sixth Circuit Invalidates the BIA's Post Departure Bar Rule

2011-02-03T11:08:00.000-08:00

One of our cases currently pending at the Ninth Circuit raises the same issue, does the Board of Immigration Appeals lose jurisdiction to decide a Motion once the alien leaves the U.S.? The BIA has consistently held, yes, and the government has used this quirk in the regulations to quickly remove someone before the BIA rules on a pending motion.

For instance, our client was taken into ICE custody, we filed a motion to reopen along with an emergency motion for stay. The BIA denies the stay motion, never rules on the motion to reopen, and ICE puts our client on a plane back to his home country. The only recourse left to us was to file a petition for review with the circuit court. DOJ moved to dismiss the petition on the basis of no final order, as the motion to reopen was still pending, and the 9th Circuit issued an OSC. Our response was to invoke the BIA's "Post-Departure Bar Rule" as violating our client's procedural due process rights. Now the Sixth Circuit has agreed with our analysis of the BIA's rule.

"Pruidze’s petition for review raises one question: Does the Board of Immigration Appeals lack jurisdiction to consider an alien’s motion to reopen once the alien is no longer in the United States? The answer is no." Pruidze v. Holder, Feb. 3, 2011.

ICE Raids Tri-Valley University in Pleasanton - Alleges Massive Immigration Fraud

2011-01-25T13:59:00.000-08:00

Over the weekend last, Immigration and Custom Enforcement (ICE) initiated a raid on Tri-Valley University, seizing assets, records, and throwing the immigration status of over 1,500 students into jeopardy. Just today, we have two former students in our office seeking help with their cases.

Here is a news report from the Economic Times of India on the repercussions of the raid.

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Hundreds of Indian students , mostly from Andhra Pradesh , face the prospect of deportation from the US after authorities raided and shut down a university in the Silicon Valley on charges of a massive immigration fraud .

The Tri-Valley University in Pleasanton, a major suburb in San Francisco Bay Area, has been charged by federal investigating authorities with being part of an effort to defraud, misuse visa permits and indulge in money laundering and other crimes.

According to a federal complaint filed in a California court, the University, which was raided and shut down last week, helped foreign nationals illegally acquire immigration status.

The university is said to have 1,555 students. As many as 95 per cent of these students are Indian nationals, the complaint said.

Investigations by Immigration and Custom Enforcement (ICE) found that while students were admitted to various residential and online courses of the university and on paper lived in California, in reality they "illegally" worked in various parts of the country as far as Maryland, Virginia, Pennsylvania, and Texas.

ICE has called it as a "sham university." The ICE investigations found that more than half of these students were reported to be residing in a single apartment located in Sunnyvale California.

During the course of the investigation ICE found that the university gave the residential address of its students in order to conceal that they did not live in California, said the court papers.

For a student to maintain an active immigration status, they must show proof that they are making reasonable process towards completing coursework and physically attend classes.

Federal investigating authorities are now sweeping out on each of those students, who paid lakhs for obtaining students visa and also students work permit.

Several of them have been interrogated, creating a panic reaction among the Indian student community.

Many of the students from Andhra Pradesh, who were planning to join the university for the new semester, have cancelled their US travel plans.

Classes were scheduled to start on January 10 after the winter break.

It is understood that many of these students are planning to leave the country as soon as possible as they are being interrogated.

There are unconfirmed reports of some of the students being detained and deportation process has been started against them.

Once the university has been shut down, the students who come on F-1 visa, lose their status within a stipulated time. These students have been making desperate calls to Indian- American immigration attorneys.

"We have received verification that ICE has detained some of the students and placed them in removal proceedings," Murthy Law Firm, a popular immigration attorney firm among Indian-Americans, said in a posting on its website.

Recent 9th Circuit Unpublished Decision Finding Homosexuality a Basis For Asylum for a Chilean National

2011-01-13T11:31:00.000-08:00

Here is the slip opinion for the court. This decision is of interest to our office because we have a similar claim for asylum / withholding based upon bisexuality of an man from Yemen, under Sharia Law.

Fonseco Rojo v. Holder