tag:blogger.com,1999:blog-35274489569929465232010-03-05T18:54:46.919-06:00Michael Baker -Immigration and Naturalization Law, DUI and Criminal Lawyer, ChicagoThese published blogs display the most recent entries. The archives links lets the user navigate to a collection of entries by day, month and year. This is a feed file that lets you subscribe to our blog. (312) 380-6376 |(847) 282-4723. www.mikebakerlaw.com. Published March 5, 2010, Chicago.Mike Bakerbaker@mikebakerlaw.comBlogger100125tag:blogger.com,1999:blog-3527448956992946523.post-63715682699148867062010-03-05T18:40:00.007-06:002010-03-05T18:54:46.931-06:00Gonzalez-Balderas v. Holder (7th Circuit March 5, 2010)On Petition to Review an Order of the BIA, the Seventh Circuit affirmed a denial of a Mexican National's request to reapply for admission retroactive to the date of her second reentry. The petitioner initially entered the U.S. illegally by using someone else's documentation and removed, which made her ineligible to seek readmission for five years. She illegally reentered a second time, which meant that she would be prevented from reapplying for permission to enter for ten years. Thus, in affirming the denial, the court held that application for retroactive relief cannot be granted when the effect would be to lift the ten-year bar.<br /><br /><a href="http://caselaw.lp.findlaw.com/data2/circs/7th/091890p.pdf">Gonzalez-Balderas v. Holder, No. 09-1890</a><br /><br />The petitioner, a Mexican citizen, entered the United States illegally by the use of someone else’s documentation and was promptly removed. 8 U.S.C. § 1225(b)(1)(A)(i). Her removal made her ineligible to seek readmission to the United States for five years unless she obtained permission to reapply for permission earlier. §§ 1182(a)(9)(A)(i), (iii).<br /><br />Rather than either wait or ask for permission to reapply, she snuck back into the United States a month later. This meant that she was forbidden to reapply for permission to enter for ten years. § 1182(a)(9)(C)(i)(II)(ii). Still, here she was, undetected, and the following year her husband, a lawful permanent resident of the United States (since then he has become a citizen), whom she had married shortly after her second illegal entry, filed a visa petition on her behalf. The petition was granted, and later she filed an application to adjust her status, on the basis of her husband’s status, to that of a lawful permanent resident. § 1255(i)(1).<br /><br />Upon discovering that she had reentered the country illegally after being removed, the Department of Home- land Security, though it could have removed her sum- marily, § 1231(a)(5), instead merely denied her applica- tion for adjustment of status and scheduled a new removal hearing. At that hearing which she asked the immigration judge to permit her to reapply for ad- mission retroactive to the date of her reentry. Her authority was 8 C.F.R. § 212.2(i)(2), which states that an adjustment of status can be ordered retroactively.<br /><br />The immigration judge, seconded by the Board of Immigration Appeals, ruled on the authority of In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), that an application for retroac- tive relief (which the Board calls “nunc pro tunc”—“now for then”—relief, a term that properly refers, rather, to cor- recting a mistake, Central Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999); King v. Ionization Int’l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987)) cannot be granted when the effect would be to lift the ten-year bar.<br /><br />Retroactive relief is a tool long employed by the immigra- tion authorities, based on what they believe to be implied statutory authority to provide relief from the harsh provi- sions of the immigration laws in sympathetic cases. See, e.g., Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004). This case conceivably is one. The petitioner is 51 years old and has three children, one a U.S. citizen and the others lawful permanent residents, and apart from her illegal entries she has been law-abiding. But the Board ruled that the regulation cannot contravene the statute that bars a removed alien from reapplying for admission for ten years.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-6371568269914886706?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-3997647590542921392010-03-01T13:05:00.005-06:002010-03-01T13:34:32.262-06:00Policy of prosecuting illegal aliens with no substantial criminal records is "a huge waste of resources"Pushback over border busts<br />Texas judge tells prosecutors to keep illegal entry cases out of court.<br /><br />by Marcia Coyle: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202444704175<br /><br />March 1, 2010<br /><br />After warning federal prosecutors for two years, Judge Sam Sparks was fed up with the parade of nonviolent illegal aliens in the overburdened courtrooms in his Texas division. What he did next, said lawyers across the country, was astounding and unprecedented.<br /><br />While other judges simply complained about a prosecution policy initiated by the Bush administration, the Republican-appointed judge in Austin issued an order challenging the U.S. attorney's office to justify each illegal re-entry case brought before him.<br /><br />Sparks is on the back end of a problem that is consuming the dockets in the U.S. District Court for the Western District of Texas: the prosecution of immigrants for illegal entry or re-entry who have no substantial criminal records.<br /><br />His fellow judges in the Western District tell him, "You're doing like always, Sam, hitting your head against a steel door," said Sparks in an interview. But if he can't crack steel, this judge clearly intends to make enough noise to be heard while trying.<br /><br />"Every judge in the Western District of Texas is sentencing a substantial number of illegal aliens every month," he wrote in his Feb. 5 order. "It appears the United States Attorney is not screening these cases to eliminate those persons who need no federal prosecution and should simply be returned to their own country."<br /><br />Sparks' order appears to be aimed at <span style="font-weight: bold;">Operation Streamline — a zero-tolerance enforcement program begun in 2005 and continued by the Obama administration. Under the program, anyone who crosses the border illegally is prosecuted criminally instead of being routed into civil deportation proceedings as previously done if there were no criminal record. All get deported after they serve their sentences — up to six months for the misdemeanor of first entry, up to 20 years for felony re-entry.</span><br /><br />Austin isn't within Operation Streamline's jurisdiction but that hasn't stopped prosecutors, and neither is San Antonio, which shares Austin's pain to such a degree that the overwhelmed Federal Public Defender's Office has begun handing cases over to private attorneys. The Western Division ranks third in the nation in immigration prosecutions. And then there is Wyoming. That's right, Wyoming. Not exactly viewed as a hotbed of illegal immigration, prosecutions of re-entry cases tripled there from roughly 30 to 100 from 2008 to 2009, said Assistant Federal Public Defender David Weiss, adding, "They're pretty much prosecuting every re-entry."<br /><br />"Those people who have criminal records, they should be prosecuted and they're going to jail," Sparks said. "But a lot of people lived here, went to school here and then got deported because they never were citizens. They have family here and sometimes get caught coming back because a brother or sister needs help. It doesn't make any sense to send those people to the penitentiary.<br /><br />"When we're prosecuting illegal re-entry cases without any real criminal history, we're spending 3,000 to 6,000 bucks a head to do what we would without prosecution. All of them get deported. The only question is when."<br /><br />ENFORCING THE LAW<br /><br />Sparks, appointed to the Western District of Texas by President George H.W. Bush, is a "very, very smart judge" and knows exactly why the U.S. attorney's office is doing what it is doing, said immigration attorney Daniel Kowalski of Austin.<br /><br />"They're easy numbers, slam-dunk cases, so if they want to rack up their numbers, they just do entry cases," Kowalski said. "And it's part of what Operation Streamline tells them to do, even though Austin isn't part of Operation Streamline."<br /><br />Operation Streamline is enforced in Yuma and Tucson, Ariz.; Las Cruces, N.M.; and Del Rio, El Paso, Laredo, McAllen and Brownsville, Texas.<br /><br />But other immigration attorneys in the area said what is happening is not exactly like Operation Streamline. That program is fast-track enforcement, taking cases from arrest along the border to sentencing in two days. In Austin, San Antonio and other areas outside of that operation, processing can take much longer. Sparks' controversial order was issued in the case of three illegal immigrants who had been in custody three months at a cost to the county jail of more than $13,000, he said, plus medical, dental, transportation, defense and other costs. He sentenced them to time served on Feb. 5.<br /><br />The cases often are more complex. Some immigrants have citizenship claims and challenges to deportation that take time to sort out and to defend, explained attorneys. They can be sufficiently complicated that judges in San Antonio were reluctant to allow private attorneys to handle them until the Federal Public Defender Office provided training.<br /><br />In his order, Sparks said federal prosecutors had failed, when he asked, to state why the three immigrants he sentenced were prosecuted instead of deported, and he ordered their office to respond. On Feb. 23, acting U.S. Attorney John Murphy filed his response.<br /><br />After telling Sparks that the U.S. attorney's office ordinarily does not have to explain its reasons for prosecuting certain defendants, Murphy said he would do so because the judge had raised a matter of public interest.<br /><br />In addition to increased prosecutions at the border, Murphy said his office has expanded prosecutions in all divisions in the Western District "to include a wide spectrum of violators, and not only the 'aggravated felons' that were the primary subject of prosecutions for violation" in past years for illegal re-entry.<br /><br />Each of the three Mexican defendants addressed in Sparks' order, he added, had been repeatedly removed from the United States and were last in custody for burglary of a vehicle and driving while intoxicated.<br /><br />"While it is not certain that prosecuting these defendants for felony violations will change their conduct, this prosecutor is unwilling to wait for them to commit even more serious crimes, and possibly harm innocent drivers, passengers, or pedestrians, before charging them with the provable offenses they already have committed," Murphy wrote.<br /><br />His predecessor, Johnny Sutton, partner in Austin's The Ashcroft Group, who served from 2001 to April 2009, said the Western District always had a reputation for aggressive prosecution, particularly along the border.<br /><br />In 2007, he recalled, Congress authorized 14 new prosecutors for his district's border enforcement. "One of the things I did was put a number of them at the border, but some went to interior offices like San Antonio and Waco," he said. "What you're seeing is prosecutions being done by those prosecutors. What changed was resources."<br /><br />Sutton added, "I do have sympathy for judges who in the old days did bank robberies and white-collar crimes, and now have to do a lot of immigration cases, not particularly interesting cases for them. But I think it's clear people think something needs to be done with immigration and this is one place to start."<br />CRITICISM BUILDS<br /><br />The policy of prosecuting illegal aliens with no substantial criminal records is "a huge waste of resources," said Denise Gilman, head of the University of Texas School of Law's immigration clinic. "Law enforcement and our courts must have more serious activities to be pursuing."<br /><br />Echoing her criticism is a growing chorus of judges, defense attorneys, academics and even some prosecutors. Just recently, the Warren Institute on Race, Ethnicity & Diversity at the University of California, Berkeley School of Law released a study of the effectiveness of Operation Streamline and recommended a return to leaving illegal border crossings to the civil immigration system and restoration of prosecutors' discretion to initiate prosecutions that they feel should be a priority.<br /><br />When the government talks about "criminal aliens," said Michele Waslin, senior policy analyst at the Immigration Policy Center, "the impression is these are dangerous, violent criminals, when, in fact, many are not."<br /><br />The situation is unlikely to change. The Department of Justice has asked for a $231.6 million increase in funding for fiscal year 2010 to support enforcement along the southwest border and Operation Streamline; $8.1 million of this is just for new prosecutors to help adjudicate Operation Streamline cases.<br /><br />On Feb. 17, TRAC, the Transactional Records Access Clearinghouse at Syracuse University, released its latest report on Department of Justice prosecutions:<br /><br />During the first nine months of fiscal year 2009, there were 67,994 new immigration prosecutions — 54% of all federal criminal filings. At the current pace, the estimated total for this fiscal year will be 90,659 — a 14.1% increase from the past fiscal year, a 139% increase from five years ago and a 459% percent from a decade earlier.<br /><br />The top-ranked lead charges were entry of alien at improper time or place and re-entry of deported alien, with the largest number of prosecutions in the Southern District of Texas, the District of Arizona and the Western District of Texas.<br /><br />"If you take out immigration prosecutions, the number of prosecutions is going down, including felonies," said TRAC's Susan Long.<br /><br />All he really wants, Sparks said, is better screening of the cases, and he intends to demand reasons from prosecutors when he sees none in the pre-sentencing reports.<br /><br />"It's an administrative nightmare to handle the numbers we're handling in all of the divisions when we don't have the federal facilities or judges needed," he said.<br /><br />"People say, 'Well, Sparks, you have to enforce the law.' And I get nice letters from employers who say these aliens were reliable and never gave them any trouble. They could have stopped illegal immigration a long time ago by enforcing it against employers. This situation was leaderless before the election and nothing has changed."<br /><br />Marcia Coyle can be contacted at mcoyle@alm.com.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-399764759054292139?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-90387234857369797542010-02-24T08:11:00.001-06:002010-02-24T08:11:38.331-06:00Police Report that Had Been Incorporated into Guilty Plea Was Part of Record of ConvictionIn applying the modified categorical approach to assess an alien’s conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings.<br /><br />The Board of Immigration Appeals (BIA or Board) has held that, in applying the modified categorical approach to assess an alien's conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings. In the instant case, the respondent was convicted of battery against a spouse, and the issue was whether that conviction amounted to a crime of violence. <a href="http://www.justice.gov/eoir/vll/intdec/vol25/3674.pdf"><i>Matter of </i><i>Milian-Dubon</i>, 25 I. & N. Dec. 197 (B.I.A. Feb. 19, 2010).</a><br /><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />The respondent, a native and citizen of Guatemala, is a lawful permanent resident of the U.S. In 2004, he pled guilty to battery of his spouse in violation of Cal. Penal Code § 243(e)(1). The Department of Homeland Security (DHS) initiated removal proceedings, contending that the respondent's conviction rendered him removable under INA § 237(a)(2)(E)(i) [8 USCA § 1227(a)(2)(E)(i)] for having committed a crime of domestic violence. The immigration judge (IJ), finding that the record of conviction consisted only of the criminal complaint and guilty plea, concluded that the information in the record did not clearly establish that the respondent had been convicted of a crime of domestic violence and terminated the proceedings. DHS appealed the IJ's decision, arguing that the IJ erred by not including the police report in the record of conviction.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />In a decision written by Board Member Garry Malphrus, in which Board Members Edward Grant and Neil P. Miller joined, the Board began its analysis by looking at the language of the relevant statutes. It found first that the generic statute holds that a crime of domestic violence is a crime of violence against, among others, a current or former spouse. Further, the generic definition of crime of violence includes, among other things, the use, attempted use, or threatened use of physical force against another person. Turning to the California statutes, the BIA found that the California crime of domestic violence statute punishes battery against certain persons, in this case, the respondent's spouse. The BIA looked at the California definition of “battery,” which is any willful and unlawful use of force or violence upon the person of another, and determined that it did not require a force capable of hurting or causing injury nor did it require violence in the usual sense of the term. Thus, the Board opined, the respondent's crime was not <i>categorically</i> a crime of violence or, by extension, a crime of domestic violence. The Board thus turned to the modified categorical approach outlined by the U.S. Supreme Court in <a href="http://scholar.google.com/scholar_case?case=12691388706604781341&q=495+U.S.+575+&hl=en&as_sdt=400002" target="_top"><i>Taylor v. U.S.</i>, 495 U.S. 575 (1990)</a>.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />Under the modified categorical approach as applied in the U.S. Court of Appeal for the Ninth Circuit, the jurisdiction in which the respondent's case is being litigated, only when the particular elements of the crime are broader than the generic crime can the modified categorical approach be used. Further, if the crime of conviction is missing an element of the generic crime, the approach may not be used. The Board opined that battery is an element of the crime that the respondent was convicted of and, thus, the crime of domestic violence is not missing an element of the general crime. The Board concluded that it was therefore free to use the modified categorical approach in the instant matter.<br /><br />Applying the approach, the Board stated that it “may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings.” In the instant matter, the relevant conviction documents included the criminal complaint and the respondent's signed guilty plea, which reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. The Board stated that, while a police report, standing alone, is not part of the record of conviction, <a name="FNRF2350887004"></a><br />the fact that the respondent incorporated the police report into the guilty plea made it an “explicit statement ‘in which the factual basis for the plea was confirmed by the [respondent].”’ <a name="FNRF3350887004"></a><br /><br />The Board rejected the respondent's argument that the police report was not admitted into the record and thus should not be considered. The Board opined that, because the plea agreement incorporates the police report, it is indeed considered part of the record. The IJ should have considered the information in the police report, the Board concluded, and remanded that matter to the IJ for further findings consistent with the Board's opinion.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />John Richard Smith, San Diego, California, represented the respondent. Megan Berry Oshiro, Assistant Chief Counsel, represented DHS.<br /></div><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-9038723485736979754?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-64018100538565051872010-02-11T12:18:00.005-06:002010-02-11T12:23:48.428-06:00Illegal immigrant marrying US citizen. Can I apply for residency?Question: I am an undocumented immigrant was brought to the US when i was about 6yrs old, have lived here ever since, i am going to marry a US citizen. We are trying to figure out what we need to do to make me a resident. Some have told us it would be better to get married in the country i was born in and then apply for residency others say we should get married here in the US and apply for residency???? Need advice please!! Thanks in advance!<br /><br />Answer: <a href="http://www.avvo.com/legal-answers/illegal-immigrant-marrying-us-citizen---how-can-we-206233.html#answer_more">Illegal immigrant marrying US citizen. How can we apply for residency for illegal immigrant?<br /></a><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-6401810053856505187?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-82023466685958415002010-02-07T12:34:00.010-06:002010-02-07T13:05:47.835-06:00EOIR Immigration Law Advisor<a href="http://www.justice.gov/eoir/vll/ILA-Newsleter/lib_ila.html">EOIR Virtual Law Library - AG/BIA Precedent Decisions</a><br /><br />EOIR has published a monthly internal legal newsletter, the Immigration Law Advisor, since January 2007 summarizing new developments in immigration law. The Immigration Law Advisor includes a feature article about an issue in immigration law, federal court activity (which includes circuit-specific information about appeals and interesting cases), BIA precedent decisions, and a regulatory update.<br /><br /><a href="http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202010/vol4no1.pdf">Volume 4 #1</a><br /><br />__________<br /><br />Seventh Circuit: Milanovic v. Holder, __F.3d__, 2010 WL 22371 (7th Cir. Jan. 6, 2010): The Seventh Circuit affirmed the denial of the Serbian petitioner‚ applications for withholding of removal and protection under the Convention Against Torture. (The petitioner‚ asylum application was dismissed as untimely.) The Immigration Judge found that the petitioner was persecuted when he was beaten by supporters of Slobodan Milosevic. However, relying on the State Department Country Report, the Immigration Judge ruled that DHS rebutted the presumption of future persecution, given that Milosevic is no longer in power. With respect to the petitioner's argument‚that his claim of persecution was based on the actions of a purely local official and thus the ouster of Milosevic could not constitute a change in country conditions sufficient to rebut the presumption of future persecutions, the court ruled this argument was waived because the petitioner did not present it to the Immigration Judge or Board. The court further ruled that, even if the petitioner's argument was not waived, there is adequate evidence to support the Immigration Judge's determination that the removal of Milosevic constituted a change in country conditions sufficient to rebut the presumption of future persecution.<br /><br />Haile v. Holder, __F.3d__, 2010 WL 22372 (7th Cir. Jan. 6, 2010): The<br />Seventh Circuit remanded following the denial of the petitioner's application for asylum. The petitioner was born in Ethiopia to parents of Eritrean ethnicity. When Eritrea and Ethiopia separated in 1993, the petitioner's parents renounced their Ethiopian citizenship and became Eritrean citizens, but the petitioner remained in Ethiopia and kept his Ethiopian citizenship. In 1998, when war began between Ethiopia and Eritrea, Ethiopia expelled 75,000 Ethiopian citizens of Eritrean ethnicity. Before he could be expelled from Ethiopia, the petitioner went to the United States and applied for asylum, arguing that Ethiopia's stripping him of citizenship constituted persecution. The Immigration Judge initially denied the application on the grounds that stripping a person of citizenship, without anything more, is not persecution. The Seventh Circuit remanded in Haile v. Gonzales, 421 F.3d 493 (7th Cir. 2005), but the Board subsequently denied the application again. In remanding for a second time with its present decision, the court first agreed with the Board "that not all denationalizations are instances of persecution." However, the court disagreed with the Board's conclusion that even if a person loses his citizenship because of a "A protected ground‚" . . . such a loss of citizenship does not, without more, amount to persecution.‚" In this respect, the court stated that "i]f Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it did so because of hostility to Eritreans . . . and [this] suggest[s] that his denationalization was persecution and created a presumption that he has a well-founded [sic] fear of being persecuted should he be returned to Ethiopia."<br /><br />Bayo v. Napolitano, __F.3d__, 2010 WL 174231 (7th Cir. Jan. 20, 2010):<br />The Seventh Circuit denied the petition for review of a citizen of Guinea from the DHS‚ summary order of removal. The petitioner, who entered the United States under the Visa Waiver Program using a stolen Belgian passport, had been ordered removed by DHS without being placed in removal proceedings. The court rejected the petitioner's argument that the VWP provisions could not apply to him as a citizen of Guinea (a non-VWP country) and further found no due process violation based on the petitioner‚ claim that his signing of the waiver of his right to a hearing was not‚ "knowing and voluntary" where he failed to establish that he was prejudiced as a result. The court finally found that the petitioner was precluded from pursuing his adjustment of status application (based on his marriage to a United States citizen) where such petition was filed beyond the 90-day limit for visits allowed under the VWP provisions.<br /><br /><a href="http://www.scotuswiki.com/index.php?title=Kucana_v._Holder">Kucana v. Holder</a>, __S. Ct.__, 2010 WL 173368 (Jan. 20, 2010): The Supreme Court reversed and remanded the decision of the United States Court of Appeals for the Seventh Circuit, which had ruled that it lacked jurisdiction to review the Board's denial of a motion to reopen based on a claim of changed country conditions in Albania. The Court held that the provisions of section 242(a)(2)(B) of the Act prohibit judicial review of matters in which the Attorney General is given discretion by statute, but not to matters in which the Attorney General grants discretion to the Board by regulation.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-8202346668595841500?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-29164496842082441942010-02-07T11:28:00.003-06:002010-02-07T11:32:01.954-06:00Refugee Caselaw Site - Asylum Law - University of Michigan Law School<a href="http://www.refugeecaselaw.org/">Refugee Law - Asylum Law - University of Michigan Law School</a><br /><br />The Refugee Caselaw Site, directed by Prof. James C. Hathaway, is the world's only collection of carefully selected leading cases which interpret and apply the UN's refugee definition, used as the basis for access to protection in nearly 150 states around the world. It's completely free to use, can be searched via structured and free-text queries, and allows users to download full-text judgments of cases. It's a volunteer effort of academics, judges, and practitioners from nearly 30 countries to share the best of refugee law knowledge with their colleagues.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-2916449684208244194?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-86157051940245984032010-02-03T14:36:00.004-06:002010-02-03T17:45:38.622-06:00BIA Holds that Changed Circumstances Do Not Result in Automatic One-Year Extension of Time for Filing for Asylum<div style="text-indent: 0.25in;">The Board of Immigration Appeals (BIA or Board), in <a href="http://www.justice.gov/eoir/vll/intdec/vol25/3673.pdf"><i>Matter of </i></a><i><a href="http://www.justice.gov/eoir/vll/intdec/vol25/3673.pdf">T-M-H</a>- and S-W-C-</i>, 25 I. & N. Dec. 193 (B.I.A. Jan. 29, 2010), held that an alien does not receive an automatic one-year extension in which to file an asylum application following “changed circumstances” under INA § 208(a)(2)(D) [<a href="http://www.law.cornell.edu/uscode/uscode08/usc_sec_08_00001158----000-.html" target="_top">8 USCA § 1158(a)(2)(D)</a>] and that under <a href="http://law.justia.com/us/cfr/title08/8-1.0.2.5.8.1.1.4.html" target="_top">8 CFR § 1208.4(a)(4)(ii)</a>, the particular circumstances related to delays in filing an asylum application must be evaluated to determine whether the application was filed “within a reasonable period given those ‘changed circumstances.”’ Finding that the immigration judge's (IJ's) decision contained insufficient findings of fact with respect to the respondents' specific circumstances for the Board to determine on appeal the reasonableness of an almost nine-month delay for one respondent and an almost one-year delay for the other, the Board remanded the matter to the IJ for further proceedings.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />The respondents are a husband and wife who are natives and citizens of China. In a decision dated January 3, 2008, the IJ granted them asylum and declined to decide their requests for withholding of removal and protection under the Convention Against Torture. The Department of Homeland Security (DHS) appealed, contending that the IJ erred to the extent that he determined that the respondents' applications for asylum, which were filed within one year of the birth of their second child, were filed within a reasonable period given those changed circumstances. DHS conceded the truth of the facts set forth by the respondents in their asylum applications but asserts that, as a matter of law, the Board's decision in <a href="http://www.google.com/url?sa=t&source=web&ct=res&cd=1&ved=0CAcQFjAA&url=http%3A%2F%2Fwww.justice.gov%2Feoir%2Fvll%2Fintdec%2Fvol24%2F3566.pdf&ei=Lt9pS5TcH5GKswPMrd2aBQ&usg=AFQjCNG86HvfJ--QJF8hJEvyBtWo8WYxRw&sig2=NArE6ZV2u8qaSPqGT9dF5Q" target="_top"><i>Matter of J-W-S-</i>, 24 I. & N. Dec. 185 (B.I.A. 2007)</a>, <a name="FNRF2350033515"></a>precluded granting the respondents' relief in this case. The respondents countered that one year is a reasonable period within which to file an asylum application based on changed circumstances and that the IJ properly determined, based on the undisputed facts presented in this case, that they have a well-founded fear of persecution as a result of their violation of local Chinese family planning policies.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />In an opinion written by Board Member Lauri S. Filppu and joined by Board Members Roger Pauley and Anne J. Greer, the Board first noted that DHS did not identify any clear error in the IJ's findings of fact and that it found none either. However, the Board disagreed with the IJ's legal determination that the respondents satisfy an exception to the one-year asylum filing deadline simply because their applications were filed within one year of changed circumstances that materially affect their eligibility for relief. The Board pointed out that Congress enacted the changed-circumstances exception in conjunction with the one-year asylum application filing deadline in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 <a name="FNRF3350033515"></a> but that IIRIRA is silent with respect to precisely when an alien must file an asylum application in relation to materially changed circumstances. However, <a href="http://law.justia.com/us/cfr/title08/8-1.0.2.5.8.1.1.4.html" target="_top">8 CFR § 1208.4(a)(4)(ii)</a> provides that such an asylum application must be filed “within a reasonable period given those ‘changed circumstances.”’<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />While neither the statute nor the regulation defines “reasonable period,” the Board found guidance in the Supplementary Information to the regulations implementing the IIRIRA, which states that an alien in a valid immigration status should apply for asylum as soon as possible after expiration of his or her valid status and failure to do so would result in rejection of the asylum application. <a name="FNRF4350033515"></a>That Supplemental Information also states with regard to such an asylum seeker that:<br /></div><div style="padding-left: 0.25in; text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />Clearly, waiting six months or longer after expiration or termination of status would not be considered reasonable. Shorter periods of time would be considered on a case-by-case basis, with the decision-maker taking into account the totality of the circumstances.</div><a name="sp_999_2"></a><br />In addition, the Board noted, the Supplemental Information addressing applications more generally (and not simply those of aliens who had been in valid status) states that:<br /><div style="padding-left: 0.25in; text-indent: 0.25in;"><a name="sp_999_2"></a><br />Although there may be some rare cases in which a delay of one year or more may be justified because of particular circumstances, in most cases such a delay would not be justified. Allowing an automatic one year extension from the date a changed or extraordinary circumstance occurred would clearly exceed the statutory intent that the delay be related to the circumstance. Accordingly, that approach has not been adopted.</div><div style="text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />The Board recognizes that the Supplemental Information is not binding but found it useful in interpreting the regulation at issue and concluded that the IJ improperly gave the respondents an automatic one-year extension from the date when their second child was born without evaluating their filing delays in relation to the particular circumstances involved. However, the Board declined to decide whether the respondents' delay was reasonable as the IJ's decision did not contain sufficient findings of fact with respect to the respondents' specific circumstances to permit the Board to determine on appeal the reasonableness of their delays in filing their asylum applications. Therefore the matter was remanded for the IJ to make additional findings of fact with respect to the particular circumstances involved.</div><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-8615705194024598403?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-7289847519078776872010-02-03T14:07:00.008-06:002010-02-03T14:35:42.212-06:00Adjudicating Forms I-212 for Aliens Inadmissible after a prior immigration violation or reinstated removal orders<span id="mDocumentText_ctl00_mTextDisplay" class="DocumentBody">U.S. Citizenship and Immigration Services (USCIS) on January 25, 2010, released a May 19, 2009, memorandum from Acting Deputy Director Michael Aytes to USCIS leadership entitled “Adjudicating Forms I-212 for Aliens Inadmissible Under Section 212(a)(9)(C) or Subject to Reinstatement Under Section 241(a)(5) of the Immigration and Nationality Act in light of <a href="http://bit.ly/cUYq88" target="_top"><i>Gonzalez v. DHS,</i> 508 F.3d. 1227 (9th Cir. 2007)</a>.” The memorandum supersedes and rescinds in its entirety the March 31, 2006, memorandum entitled “Effect of <i>Perez-Gonzalez v. Ashcroft</i> on adjudication of Form I-212 applications filed by aliens who are subject to reinstated removal orders under INA § 241(a)(5).”</span><br /><br /><a href="http://bit.ly/aq0JMe">Download Memo</a><br /><br /><div style="text-indent: 0.25in;">INA § 245(a) [<a href="http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.01&referencepositiontype=T&referenceposition=SP%3b8b3b0000958a4&fn=_top&sv=Split&docname=8USCAS1255&tc=-1&pbc=35DD21B9&ordoc=0350091129&findtype=L&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=296" target="_top">8 USCA § 1255(a)</a>] permits certain aliens to adjust their status to that of a lawful permanent resident in the U.S. rather than visa processing abroad; however, aliens who entered the U.S. without being inspected (entries without inspection or EWIs) or who are presently not in a lawful status (present without inspection or PWIs) generally cannot adjust status in the U.S. <a name="FNRF2350091129"></a>INA § 245(i) created an exception to these adjustment bars for certain aliens who were the beneficiaries of visa petitions or labor certification applications filed on or before April 30, 2001, <i>if</i> they are admissible to the U.S. <a name="FNRF3350091129"></a><br /></div><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />INA § 212(a)(9)(C) [<a href="http://www.law.cornell.edu/uscode/08/usc_sec_08_00001182----000-.html" target="_top">8 USCA § 1182(a)(9)(C)</a>] renders inadmissible any alien who enters or attempts to enter without admission after a prior immigration violation. Under INA § 212(a)(9)(C)(i)(I), an alien is inadmissible if the alien enters or attempts to enter the U.S. without admission after having been unlawfully present in the U.S. for an aggregate period of more than one year. If the alien's entry or attempted entry without admission occurs after the alien has been ordered removed, the alien is inadmissible under INA § 212(a)(9)(C)(i)(II). An alien may be inadmissible under both § 212(a)(9)(C)(i)(I) and (II).<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />INA § 212(a)(9)(C)(i) provides that any alien who has been ordered removed and who then enters or attempts to reenter without being admitted is permanently barred from admission. However, INA § 212(a)(9)(C)(ii) provides an exception for an alien seeking admission more than 10 years after the date of the alien's last departure from the U.S. if, prior to the alien's reembarkation at a place outside of the U.S. or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission. Form I-212 is used to request this permission. The Secretary of Homeland Security's authority to grant such permission has been delegated to USCIS.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_1"></a><a name="SDU_1"></a><br />Prior to the Illegal Reform and Immigrant Responsibility Act of 1996 (IIRIRA), <a name="FNRF4350091129"></a> the INS published a regulation at <a href="http://law.justia.com/us/cfr/title08/8-1.0.1.2.15.0.1.2.html" target="_top">8 CFR § 212.2(e)</a> that allowed aliens to seek permission to reapply for admission while in the U.S. when the I-212 was filed in conjunction with an adjustment application. In addition, <a href="http://law.justia.com/us/cfr/title08/8-1.0.1.2.15.0.1.2.html" target="_top">8 CFR § 212.2(i)</a> provided that any approval of the Form I-212 would be retroactive to the date when the alien departed for the U.S.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />INA § 241(a)(5) [<a href="http://www.law.cornell.edu/uscode/uscode08/usc_sec_08_00001231----000-.html" target="_top">8 USCA § 1231(a)(5)</a>] permits the Secretary of Homeland Security to reinstate a prior removal order against an alien who illegally reenters the U.S. after having been removed or having departed voluntarily under an order of removal. The prior order is reinstated from its original date and may not be reopened or reviewed (although the reinstatement order may be reviewed. INA § 241(a)(5) also provides that an alien against whom a removal order has been reinstated may not apply for any relief under the INA.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />Courts, including the U.S. Court of Appeals for the Ninth Circuit, that have considered whether an alien whose prior removal order has been reinstated under INA § 241(a)(5) can apply for adjustment of status under INA § 245(i) have held that the alien cannot. <a name="FNRF6350091129"></a>However, in <a href="http://scholar.google.com/scholar_case?case=15124497771493091286&q=Perez-Gonzalez+v.+Ashcroft,+379+F.3d+783+%289th+Cir.+2004%29&hl=en&as_sdt=400002" target="_top"><i>Perez-Gonzalez v. Ashcroft</i>, 379 F.3d 783 (9th Cir. 2004)</a>, the Ninth Circuit, contrary to every other circuit and the Board of Immigration Appeals, <a name="FNRF8350091129"></a> held that an alien who illegally reenters the U.S. after having been removed could file for adjustment of status (in conjunction with an I-212 application) <i>before</i> the prior removal order is reinstated. Subsequently, the Ninth Circuit overruled its decision in <i>Perez-Gonzalez v. Ashcroft</i>. However, in the interim, USCIS issued the March 31, 2006, policy memorandum providing guidance for USCIS officers adjudicating I-212 petitions in the Ninth Circuit and for those adjudicating such petitions elsewhere. Then, on November 13, 2006, the U.S District Court for the Western District of Washington in <a href="http://www.google.com/url?sa=t&source=web&ct=res&cd=1&ved=0CAcQFjAA&url=http%3A%2F%2Fwww.uscis.gov%2Ferr%2FH4%2520-%2520Application%2520for%2520Reentry%2520after%2520Removal%2520or%2520Aggravated%2520Felony%2520Conviction%2FDecisions_Issued_in_2009%2FJun112009_01H4212.pdf&ei=LttpS7fyEJOmsgO5svnzBA&usg=AFQjCNE7nQTPyHzUwFvMGeie5XEyZobAwA&sig2=Tqm1weY3BPc77KtkEaUJyQ" target="_top"><i>Gonzales v. U.S. Dept. of Homeland Sec.</i>, 239 F.R.D. 620 (W.D. Wash. 2006)</a>, enjoined DHS from following its March 31, 2006 guidance. As a result, USCIS placed a hold on all cases affected by the district court's injunction.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />Subsequently the Ninth Circuit, in vacating the district court's order in <i>Gonzales,</i> repudiated its decision in <a href="http://scholar.google.com/scholar_case?case=8299566724615734675&q=508+F.3d+1227+%289th+Cir.+2007%29&hl=en&as_sdt=400002" target="_top"><i>Gonzales v. Department of Homeland Sec.</i>, 508 F.3d 1227 (9th Cir. 2007)</a>, <a name="FNRF9350091129"></a> finding that it must defer to the Board's decision in <a href="http://www.google.com/url?sa=t&source=web&ct=res&cd=1&ved=0CAcQFjAA&url=http%3A%2F%2Fwww.justice.gov%2Feoir%2Fvll%2Fintdec%2Fvol23%2F3524.pdf&ei=79tpS4KwOY3MsQOn672dBQ&usg=AFQjCNHqMrEzv75zGDCk-7zzRqhh2Ew1Pw&sig2=FN49Y5iXvqexbD7uv3uFDw" target="_top"><i>Matter of Torres-Garcia</i>, 23 I. & N. Dec. 866 (B.I.A. 2006)</a>, <a name="FNRF10350091129"></a>which held that an alien who reenters the U.S. without admission after having been removed is inadmissible under INA § 212(a)(9)(C)(i)(II). As a result, USCIS has now rescinded its March 31, 2006, memorandum and, in its May 19, 2009, memorandum, provides uniform guidance to all USCIS officers adjudicating I-212 applications.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_2"></a><a name="SDU_2"></a><br />The May 19, 2009 memorandum, which is reproduced below, directs that all 245(i) cases that were previously placed on hold should now be adjudicated in accordance with the guidance given in the memorandum and current processing guidelines for consent to reapply applications. The memorandum explains that the guidance is prospective and applies to all 245(i) adjustment applications and all § 212(a)(9)(C)(ii) Form I-212s filings that are currently pending or are filed in the future regardless of the circuit in which the case arose or is adjudicated. The new guidance does not affect requests for consent to reapply or adjustment applications that were previously approved based on the 2006 memorandum.<br /></div><div style="text-indent: 0.25in;"><a name="sp_999_3"></a><a name="SDU_3"></a><br />The memorandum explains in detail how to process I-212s from:<br /><br /><div><div style="text-indent: -0.1in; padding-left: 0.5in;">• aliens seeking consent to reapply prior to the expiration of the required 10-year period specified under § 212(a)(9)(C)(ii)<br /></div><br /></div><div><div style="text-indent: -0.1in; padding-left: 0.5in;">• aliens inadmissible under § 212(a)(9)(C)(i) and subject to removal orders reinstated prior to the filing of the I-212<br /></div><br /></div><div><div style="text-indent: -0.1in; padding-left: 0.5in;">• aliens inadmissible under § 212(a)(9)(C)(i) and subject to removal orders reinstated at the time of adjudication of the I-212 application<br /></div><br /></div><div><div style="text-indent: -0.1in; padding-left: 0.5in;">• aliens inadmissible under § 212(a)(9)(C)(i)(II) with no reinstatement of a prior removal order at the time of adjudication of the I-212 application<br /></div><br /></div><div><div style="text-indent: -0.1in; padding-left: 0.5in;">• aliens eligible to file for consent to reapply<br /></div><br /></div><div style="text-indent: -0.1in; padding-left: 0.5in;">• VAWA <a name="FNRF11350091129"></a>self-petitioners inadmissible under § 212(a)(9)(C)(i)</div><br /></div><br /><a href="http://www.mikebakerlaw.com/ortega.pdf" onclick="javascript:document.location.href='http://bit.ly/6ue8r6';">http://bit.ly/aq0JMe</a><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-728984751907877687?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-26564996947409222402010-02-02T17:06:00.003-06:002010-02-02T18:25:24.978-06:00Illinois Cell Phone & Highway Safety Driving Laws<blockquote> <ul class="forcedbody"><li><a href="http://www.ghsa.org/html/stateinfo/bystate/il.html">Illinois Highway Safety Laws</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/aggressivedriving_laws.html">Aggressive Driving</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html">Cell Phone Driving</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/childsafety_laws.html">Child Passenger Safety</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/dre_perse_laws.html">Drug Impaired Driving</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/impaired_laws.html">Drunk Driving</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/license_laws.html">Graduated Driver Licensing (GDL)</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/helmet_laws.html">Helmets</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/olderdriver_laws.html">Mature Drivers</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/seatbelt_laws.html">Seat Belts</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/segway_laws.html">Segways</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/checkpoint_laws.html">Sobriety Checkpoints</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/speedlimit_laws.html">Speed Limits</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/auto_enforce.html">Speed and Red Light Cameras</a></li><li><a href="http://www.ghsa.org/html/stateinfo/laws/sanctions_laws.html">Work Zone Speed Limits</a></li></ul><br />The <a href="http://wheels.blogs.nytimes.com/2010/01/29/study-finds-that-reduced-phone-use-does-not-cut-crashes/#more-40913">NYT Wheels Blog </a>reports:<br /><br /><span style="font-size:100%;"><span style="color: rgb(0, 0, 0);">Laws banning cellphone use while driving apparently haven’t reduced crashes, according to a study released on Friday that compared the number of total crashes before the ban with the number after. The study found virtually no difference in the numbers, a finding that had the researchers scratching their heads. </span></span><p style="color: rgb(0, 0, 0);"><span style="font-size:100%;">“We were very surprised,” said Adrian Lund, the president of the Highway Loss Data Institute that conducted the study and an affiliate of the Insurance Institute for Highway Safety.</span></p> <p style="color: rgb(0, 0, 0);"><span style="font-size:100%;">The thought was, of course that if law were passed that decreased cellphone use, then there should be fewer crashes. But that was not the case.</span></p> <p style="color: rgb(0, 0, 0);"><span style="font-size:100%;">“You know that there should be fewer,” he said. “We were looking for that, and we aren’t seeing that pattern,” said Mr. Lund, who is also the insurance institute’s president.</span></p></blockquote> <p style="text-align: left;"> You can see the relevant charts in <a href="http://www.iihs.org/news/2010/hldi_news_012910.pdf">this document</a>. </p><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-2656499694740922240?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-52917130261642516042010-01-20T14:29:00.010-06:002010-01-20T15:27:21.493-06:00U.S. Supreme Court ruling preserves the right to judicial review for immigrants facing deportation.HELD: Section 1252(a)(2)(B)’s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation.<br /><br /><a href="http://www.mikebakerlaw.com/Kucana%20v.%20Holder%20%28PDF%29">Kucana v. Holder (PDF)</a><br /><em><br /></em>(a) The motion to reopen is an “important safeguard” intended “to ensure a proper and lawful disposition” of immigration proceedings. Dada v. Mukasey, 554 U. S. 1, ___. Federal-court review of adminis-trative decisions denying motions to reopen removal proceedings dates back to at least 1916, with the courts employing a deferential abuse of discretion standard of review. While the Attorney General’s regulation in point, 8 CFR §1003.2(a), places the reopening decision within the BIA’s discretion, the statute does not codify that prescription or otherwise “specif[y]” that such decisions are in the Attorney General’s discretion. Pp. 6–7.<br /><br />(b) Section 1252(a)(2)(B) does not proscribe judicial review of denials of motions to reopen. Pp. 8–16.<br /><br />(1) The amicus defending the Seventh Circuit’s judgment urges that regulations suffice to trigger §1252(a)(2)(B)(ii)’s proscription. She comprehends “under” in “authority . . . specified under this subchapter” to mean, e.g., “pursuant to,” “subordinate to.” Administrative regulations count for §1252(a)(2)(B) purposes, she submits, be-cause they are issued “pursuant to,” and are measures “subordinate to,” the legislation they serve to implement. On that reading,§1252(a)(2)(B)(ii) would bar judicial review of any decision that an executive regulation places within the BIA’s discretion, including the decision to deny a motion to reopen. The parties, on the other hand, read the statutory language to mean “specified in,” or “specified by,” the sub-chapter. On their reading, §1252(a)(2)(B)(ii) precludes judicial review only when the statute itself specifies the discretionary character of the Attorney General’s authority. Pp. 8–9.<br /><br />(2) The word “under” “has many dictionary definitions and must draw its meaning from its context.” Ardestani v. INS, 502 U. S. 129, 135. Examining the provision at issue in statutory context, the parties’ position stands on firmer ground. Section 1252(a)(2)(B)(ii) is far from IIRIRA’s only jurisdictional limitation. It is sandwiched between two subsections, §1252(a)(2)(A) and §1252(a)(2)(C), both dependent on statutory provisions, not on any regulation, to define their scope. Given §1252(a)(2)(B)’s statutory placement, one would expect that it, too, would cover statutory provisions alone. Pp. 9–11.<br /><br />(3) Section 1252(a)(2)(B)(i) places within the no-judicial-review category “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255.” Each of the referenced statutory provisions addresses a different form of discretionary relief from removal and contains language indicating that the decision is entrusted to the Attorney General’s discretion. Clause (i) does not re-fer to any regulatory provision. The proximity of clause (i) and the clause (ii) catchall, and the words linking them—“any other decision” suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute. Pp. 11–12.<br /><br />The Illegal Immigration Reform and Immigrant Responsibility Act of1996 (IIRIRA) amended the Immigration and Nationality Act (INA or Act), codifying certain rules, earlier prescribed by the Attorney General, that govern the process of reopening removal proceedings. IIRIRA also added a provision stating that no court has jurisdiction to review any action of the Attorney General “the authority for which is specified under this sub-chapter to be in the discretion of the Attorney General.” 8 U. S. C. §1252(a)(2)(B)(ii). A regulation, amended just months before IIRIRA’s enactment, provides that “[t]he decision to grant or deny a motion to reopen . . . is within the discretion of the [Board of Immigration Appeals (BIA)],” 8 CFR §1003.2(a). As adjudicator in immigration cases, the BIA exercises authority delegated by the Attorney General. Petitioner Kucana moved to reopen his removal proceedings, asserting new evidence in support of his plea for asylum. An Immigration Judge denied the motion, and the BIA sustained that ruling. The Seventh Circuit concluded that it lacked jurisdiction to review the administrative determination, holding that §1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also of those made discretionary by regulation.<br /><br />(4) Also significant is the character of the decisions insulatedfrom judicial review in §1252(a)(2)(B)(i). The listed determinations are substantive decisions the Executive makes involving whether or not aliens can stay in the country. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. See, e.g., §1157(c)(1). Decisions on reopening motions made discretionary by regulation, in contrast, are adjunct rulings. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing. Had Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation as well as by statute, moreover, Congress could easily have said so, as it did in provisions enacted simultaneously with §1252(a)(2)(B)(ii). See, e.g., IIRIRA, §213, 110 Stat. 3009–572. Pp. 12–14.<br /><br />(5) The history of the relevant statutory provisions corroborates this determination. Attorney General regulations have long ad-dressed reopening requests. In enacting IIRIRA, Congress simultaneously codified the process for filing motions to reopen and acted tobar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny reopening motions. This legislative silence indicates that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, “to grant or deny a motion to reopen,” 8 CFR §1003.2(a), but courts retain jurisdiction to review the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this “important [procedural] safeguard,” Dada, 554 U. S., at ___, where, as here, the alien’s underlying asylum claim would itself be reviewable. The REAL ID Act of 2005, which further amended the INA by adding or reformulating provisions on asylum, protection from removal, and even judicial review, did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen. Pp. 14–16.<br /><br />(c) Any lingering doubt about §1252(a)(2)(B)(ii)’s proper interpretation would be dispelled by a familiar statutory construction principle: the presumption favoring judicial review of administrative action. When a statute is “reasonably susceptible to divergent interpretation,” this Court adopts the reading “that executive determinations generally are subject to judicial review.” Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 434. The Court has consistently applied this interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. See, e.g., Reno v. Catholic Social Services, Inc., 509 U. S. 43, 63–64. Because this presumption is “ ‘well-settled,’ ” ibid., the Court assumes that “Congress legislates with knowledge of” it, McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496. It therefore takes “ ‘ “clear and convincing evidence” ’ ” to dislodge the presumption. Catholic Social Services, Inc., 509 U. S., at 64. There is no such evidence here. Finally, reading §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the BIA by regulation would ignore Congress’ design to retain for itself control over federal court jurisdiction. The Seventh Circuit’s construction would free the Executive to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions “discretionary.” Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted. Pp. 16–17. 533 F. 3d 534, reversed and remanded.<br /><br />GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,<br />C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment.<a href="http://www.mikebakerlaw.com/Kucana%20v.%20Holder%20%28PDF%29"></a><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-5291713026164251604?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-30324630360961880922010-01-17T15:57:00.004-06:002010-01-17T16:05:26.445-06:00Ortega v. Holder: Declaration of nationalityIndividuals can file an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. section 1503(a). In an action for a declaration of nationality pursuant to 8 U.S.C. section 1503(a), district court's grant of the government's motion to dismiss for lack of subject matter jurisdiction is reversed and remanded as the language of section 1503(a)(1), read within the context of section 1503(a) and also read in conjunction with related provisions of Title 8, makes it clear that Congress intended individuals to pursue one of two routes to establish claims for nationality.<br /><br />No. 08-3642 (01/15/2010):<br /><br /><a href="http://bit.ly/6ue8r6"> Ortega v. Holder (Ripple)<br /></a><a href="http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=08-3642&submit=showdkt&yr=08&num=3642"> Oral Argument | Full Text</a><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-3032463036096188092?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-23864604391160793032010-01-14T12:31:00.010-06:002010-01-14T12:42:00.682-06:00Matter of Gabriel GAMERO Perez: BIA will not reinstate voluntary departure absent proof of bond being posted<ol><li>Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with theDepartment of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.</li><li style="text-align: left;">Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to theBoard that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.</li></ol><div style="text-align: left;"><a href="http://www.blogger.com/bit.ly/6I93wi">Matter of Gabriel GAMERO Perez 25 I&N Dec. 164 (BIA 2010)</a> Decided January 13, 2010<br /></div><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-2386460439116079303?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-81022959746157406752010-01-12T09:17:00.007-06:002010-01-12T09:31:25.142-06:00Immigration suppression motion results, how individual IJs and BIA panels have analyzed the issues<a href="http://bit.ly/4rZDpC"> </a><font style="font-family: arial;" size="3">The following are IJ and BIA decisions on motions to suppress and motions to terminate. In each of these cases, the respondents in removal proceedings asked the IJ to suppress or exclude the government’s evidence or otherwise terminate proceedings. These decisions are not meant to be representative of the way in which the agency is deciding these motions, but they do illustrate how individual IJs and BIA panels have analyzed the issues.</font><br /><h6 style="font-family: arial;" class="toc"><font size="3"><a href="http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/enforcement-motions-suppress#immcourt">IMMIGRATION COURT CASES</a></font></h6> <ul style="font-family: arial;"><li><font size="3"><a href="http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/enforcement-motions-suppress#immcourt-granted">Granted</a></font></li><li><font size="3"><a href="http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/enforcement-motions-suppress#immcourt-denied">Denied</a></font></li></ul> <h6 style="font-family: arial;"><font size="3"><a href="http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/enforcement-motions-suppress#BIA-cases">BOARD OF IMMIGRATION APPEALS CASES</a></font></h6><font style="font-family: arial;" size="3"><a href="http://bit.ly/4rZDpC">LAC collects suppression motion results</a></font><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-8102295974615740675?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-62574181341652995942010-01-08T08:05:00.004-06:002010-01-08T08:09:32.520-06:00Battle Over Immigration: Washington Post's coverage of the immigration issue, Political Debate, Border & Beyond<h2 style="font-weight: normal;"><span style="font-size:100%;">The Washington Post's coverage of the immigration issue, from the politics of revising the nation's immigration laws to the impact of illegal immigration on the <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="U.S.-Mexico border" class="yoono-link-hover yoono-link-active-link">U.S.-Mexico border</yoono-highlight> and the Washington region.</span></h2><span><a target="_top" class="_b_auto" href="http://bit.ly/5RG0oc">http://bit.ly/5RG0oc</a></span><br /><br /><a href="http://www.washingtonpost.com/wp-dyn/content/custom/2006/03/31/CU2006033101407.html"></a><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-6257418134165299594?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-53728521081518852122009-12-23T17:14:00.005-06:002009-12-23T17:22:15.153-06:00Changes to the Vaccination Requirements, Adjustment of Status, Form I-693, Report of Medical ExaminationChanges to the Vaccination Requirements for Purposes of Adjustment of Status and the Completion of Form I-693, Report of Medical Examination and Vaccination Record.<br /><a href="http://bit.ly/51HoP2">Download Memo</a> (12-15-2009)<br /><br />This memorandum advises USCIS officers of the revised vaccination requirements for health-related admissibility under section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (the Act). Effective December 14, 2009, vaccinations against the Human Papillomavirus (HPV) and herpes zoster (zoster) will no longer be required. These changes are applicable to any admissibility determination made under section 212(a)(1)(A)(ii) of the Act on or after December 14, 2009.<br /><br />Under section 212(a)(1)(A)(ii) of the Act, an individual who seeks to enter the United States as an immigrant or who seeks to adjust status to permanent residence in the United States must show proof of having received vaccinations against vaccine-preventable diseases, as listed in the statute and as recommended by the U.S. Advisory Committee of Immunization Practices (ACIP).<br />advisory committee to the Department of Health and Human Services (HHS)/Centers for Disease Control and Prevention (CDC) that makes the recommendations on immunizations.<br /><br />On November 13, 2009, HHS/CDC published a Federal Register notice changing the criteria that govern the vaccination requirements for U.S. immigration purposes. 74 FR 58634.1 Starting December 14, 2009, whenever the ACIP recommends new vaccines for the general U.S. population, CDC will also assess whether these newly recommended vaccines should be required for immigration purposes using the new criteria. Thus, the new criteria provided in the Federal Register notice will be applied only to the ACIP-recommended vaccines that are not specifically named in the Act.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-5372852108151885212?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-50109733126054785922009-12-16T16:36:00.007-06:002009-12-16T16:49:16.565-06:00Carachuri-Rosendo v. Holder Supreme Court grants cert on multiple drug possession issueOn whether any second or subsequent drug possession offense must be deemed a drug trafficking aggravated felony. The case is <a href="http://bit.ly/5kv7Bo">Carachuri-Rosendo v. Holder</a>. Granted December 14, 2009.<br /><br /><a href="http://bit.ly/5kv7Bo">Docket: 09-60</a> <br /><br />The specific question presented to the Court in this case is:<br /><br />Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.<br /><br />This case challenges the adverse rulings on this issue of the 5th and 7th Circuits in which these courts found that virtually any second or subsequent state possession conviction may be deemed an aggravated felony for immigration purposes, as well as for federal criminal sentence enhancement purposes.<br /><br />Mr. Carachuri-Rosendo is represented pro bono by Sri Srinivasan of O’Melveny & Myers and Geoffrey A. Hoffman of the University of Houston Law Center. An amici brief in support of cert was filed in Carachuri-Rosendo v. Holder by the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, the National Association of Federal Defenders, the Immigrant Defense Project, the Immigrant Legal Resource Center, the National Immigrant Justice Center, and the National Immigration Project. The Court should hear argument and decide this issue sometime before the end of the Court’s current term in June 2010.<br /><br />Initial planning is underway for amicus briefing on the merits. Please contact Manny Vargas at the Immigrant Defense Project (mvargas@immigrantdefenseproject.org, 212-725-6485) for information about planned amicus briefing.<br /><br />Also, in order to prepare for amicus briefing seeking to humanize the potential impact of the Court’s ruling on this issue, the NYU Immigrant Rights Clinic is gathering cases and stories involving individuals in immigration proceedings who have two or more drug possession convictions. In particular, the clinic is interested in the stories of people who received some form of discretionary relief (particularly cancellation of removal or asylum) at the IJ level, especially if their grants of relief were reversed by the BIA because of the adverse case law in the 5th and 7th Circuits. The clinic is also seeking cases involving individuals who have not received discretionary relief but present equities that would make them strong candidates, such as people who have served in the U.S. military; people who entered the U.S. at a very young age and have lived most of their lives here; people who have strong family, community and employment ties to the U.S.; people who were convicted of minor offenses or received very light punishments; or people who successfully completed drug treatment. If you know of or are working on such a case, please email Alba Villa or Stephen Kang at alucerovilla@gmail.com and stephenbkang@gmail.com.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-5010973312605478592?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-88768115077344178342009-12-16T11:31:00.010-06:002009-12-22T15:03:24.460-06:00Benitez Ramos 7th Circuit El Salvador withholding of removal former gang memberRecord failed to support Bd.'s denial of alien's application for withholding of removal where alien (native of El Salvador) alleged that he would be persecuted by members of criminal gang on account of his status as former member of gang and as newly converted Christian if he were forced to return to El Salvador since his Christian religion would preclude him from rejoining gang. Bd. failed to give reasoned explanation for why statutory bar for individuals who commit serious crimes applied to former members of gang. Thus, Bd. must determine on remand whether alien actually committed violent acts as member of gang, which would preclude alien from obtaining relief, and whether alien was more likely to be persecuted by gang if returned to El Salvador.<br /><br />Petition for review a BIA's denial of an El Salvadoran citizen's petition for withholding of removal on the ground that former Salvadoran gang members do not constitute a particular social group, nor can membership in a criminal gang constitute membership in a particular social group, is granted and the Board's decision is vacated and remanded as a gang is a group and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.<br /><br /><a href="http:///">Download case</a><a href="http://bit.ly/8IrnnZ"></a><br /><br />El Salvador is a constitutional, multiparty democracy with a population of approximately 5.8 million. In 2004 voters elected Elias Antonio Saca of the Nationalist Republican Alliance (ARENA) as president for a five-year term in generally free and fair elections. Civilian authorities generally maintained effective control over the security forces.<br /><br />Although the government generally respected the rights of its citizens, protection of human rights was undermined by widespread violent crime, including gang-related violence, high levels of impunity from prosecution, and judicial corruption. Other significant human rights problems included harsh, violent, and overcrowded prison conditions; lengthy pretrial detention; violence and discrimination against women; abuses against children, child labor, and forced child prostitution; trafficking in persons; and inadequate enforcement of labor rights.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-8876811507734417834?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-70315665435231701592009-12-09T16:51:00.008-06:002009-12-09T17:11:53.185-06:00Matter of Maria del Carmen MARTINEZ-SERRANO(1) An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E (i)(2006).<br /><br />(2) Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.<br /><br /><a href="http://bit.ly/8078rK">File A092 340 037</a> - Florence, Arizona<br />25 I&N Dec. 151 (BIA 2009)<br />Decided December 9, 2009<br />U.S. Department of Justice<br />Executive Office for Immigration Review<br />Board of Immigration Appeals<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-7031566543523170159?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-66094071169750376972009-12-06T21:34:00.010-06:002009-12-06T21:48:33.163-06:00‘Honest services' a key component of U.S. anti-fraud statutes, key issue in Black appeal http://bit.ly/8Uo475<p style="font-family:arial;"><span style="font-size:100%;"><b>Issue: </b>Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.</span><span class="first-letter" style="font-size:100%;"><br /></span></p><p style="font-family:arial;"><span class="first-letter" style="font-size:100%;">C</span><span style="font-size:100%;">onrad Black has tried almost everything to get out of jail – legal appeals, public pleas and even a failed attempt at a presidential pardon. Nothing has worked so far, and while five former executives of Hollinger International Inc. were convicted of fraud, Lord Black is the only one still in jail.</span></p> <p style="font-family:arial;"><span style="font-size:100%;">Tuesday, he'll get one last chance to make his case. The <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="U.S. Supreme Court" class="yoono-link-hover yoono-link-active-link">U.S. Supreme Court</yoono-highlight> will hold a one-hour hearing on whether to reverse the criminal convictions of Lord Black and two other former Hollinger International Inc. executives (the other two aren't participating). Lawyers for Lord Black and the others will have 30 minutes to make their arguments. Prosecutors will have the same amount of time and a ruling is expected by June.</span></p> <p style="font-family:arial;"><span style="font-size:100%;">There is a lot riding on the outcome.</span></p> <p style="font-family:arial;"><span style="font-size:100%;">The court's ruling will not only determine Lord Black's fate, it will reshape how U.S. justice officials go after white-collar crime and political corruption. And, it will affect dozens of cases currently before the courts.</span></p> <p style="font-family:arial;"><span style="font-size:100%;">The central issue in Tuesday's hearing is a legal theory known as “honest services,” a key component of U.S. anti-fraud statutes. Prosecutors have used the theory in many high-profile cases, including those involving former executives at Hollinger, Enron and former <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Illinois" class="yoono-link-hover yoono-link-active-link">Illinois</yoono-highlight><yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Rod Blagojevich" class="yoono-link-hover yoono-link-active-link"> Rod Blagojevich</yoono-highlight>, which may affect his trial in 2010 (Mr. Blagojevich has denied federal charges of corruption). But many observers say the concept is ill defined and has criminalized conduct that would normally be a civil matter. governor </span></p><span style=";font-family:arial;font-size:100%;" class="ft2" ><span style="font-family:arial;">This Court held in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a "scheme or artifice to defraud" under the mail and wire fraud statutes to encompass schemes that "deprive another of the intangible right of honest services."</span><br /><br /><span style="font-family:arial;">Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights.</span></span><span style=";font-family:arial;font-size:100%;" ><b><br /></b></span><p style="font-family:arial;"><span style="font-size:100%;"><b>Docket: </b><a href="http://origin.www.supremecourtus.gov/docket/08-876.htm" class="external text" title="http://origin.www.supremecourtus.gov/docket/08-876.htm" rel="nofollow">08-876</a></span> </p><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-6609407116975037697?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-83652943543498265952009-12-03T13:58:00.010-06:002009-12-03T15:20:08.228-06:00Shielding Illegal Aliens from Detection Prosecution-Bringing in & harboring aliens<span style=";font-family:arial;font-size:100%;" id="mDocumentText_ctl00_mTextDisplay" class="DocumentBody" >In <a href="http://scholar.google.com/scholar_case?case=1926718229990858895&q=XIANG+HUI+YE+detecting+illegal+alien+employees&hl=en&as_sdt=2002&as_ylo=2009" target="_top"><i>United States v. Ye</i>, 2009 WL 3818340 (7th Cir. 2009)</a>, the U.S. Court of Appeals for the Seventh Circuit, affirmed a district court's conviction under INA § 274(a)(1)(A)(iii) [<a href="http://www.law.cornell.edu/uscode/8/usc_sec_08_00001324----000-.html" target="_top">8 USCA § 1324(a)(1)(A)(iii)</a>] (concealing, harboring, or shielding illegal aliens from detection) Held: that the district judge did not err in the jury instructions on the meaning of “shielding.” The Circuit Court rejected the defendant's contentions that the district court's definition of “shielding” was too vague and overbroad and that the evidence was insufficient to prove that he intended to prevent the government from detecting his illegal alien employees.<br /></span><div style="text-indent: 0.25in;font-family:arial;"><span style="font-size:100%;"><br />The defendant was part owner of a restaurant in Springfield, Illinois. In 2005, the restaurant's hiring practices were investigated based on a tip from a former employee that illegal aliens might be working there. This resulted in an indictment under various subsections of INA § 274 for harboring for commercial advantage (a felony) and hiring persons known to be illegal aliens (a misdemeanor). At trial, the jury was presented with evidence that after it was detected that the defendant did not have I-9 employee verification forms for any of his employees, he informed some of his workers that they were fired but could be re-hired if they produced immigration documents. He advised the employees that they could purchase fake documents in Chicago, which he would accept. One worker was rehired even though the documents he produced were not in his name. When immigration officials made a follow-up visit to the restaurant, it was ascertained that it did not have I-9 forms or payroll records for four Hispanic workers, because they did not have social security numbers. The defendant told the officials that the workers were living in an apartment that he was leasing.<br /></span></div><div style="text-indent: 0.25in;font-family:arial;"><span style="font-size:100%;"><a name="sp_999_10"></a><a name="SDU_10"></a><br />A few months later, in December 2005, agents arrested five illegal aliens who were working at the restaurant. It was revealed that the restaurant did not possess I-9s for these workers because they did not have immigration documents. Three Chinese employees testified that they had been hired by the restaurant without producing any immigration documents, and that the defendant had provided housing for them and other illegal aliens. Evidence was presented that the defendant had signed and submitted reports to the Illinois Department of Employment Security that listed only the wages paid to Chinese workers who had social security numbers, but no Hispanic names were on those forms. In his testimony, the defendant admitted knowing that illegal aliens worked at his restaurant, that he had arranged for renting their apartments, and that he provided them with transportation to work. Over the defendant's objection, the district judge provided the jury with definitions of the statutory terms “concealing” and “shielding.” The judge proceeded to define “shielding” as “the use of any means to prevent the detection of illegal aliens in the United States by the government.” After the jury returned its guilty verdict, the district court denied the defendant's motion for a judgment of acquittal, and, alternatively, a new trial, and sentenced him to 33 months' imprisonment.<br /></span></div><div style="text-indent: 0.25in;font-family:arial;"><span style="font-size:100%;"><a name="sp_999_10"></a><a name="SDU_10"></a><br />The Circuit Court considered that the district judge's “use of any means” language in its jury instruction was not unconstitutionally vague and was consistent with the criminal statute, INA § 274(a)(1)(A)(iii), which does not limit the types of conduct that can constitute shielding from detection. It indicated that the statute criminalizes all conduct that fits the definition of “shield,” not merely conduct that “tends substantially to facilitate” an alien's evasion of discovery. In this regard, the Seventh Circuit Court parted company with other Circuits, including the Second, Third and Fifth. It declared that whether the conduct “tends substantially” to assist an alien is irrelevant because the statute requires no specific quantum or degree of assistance. In concluding that the evidence was sufficient to support the conviction, the court stated that a reasonable jury could have concluded that the defendant's poor paperwork management was indicative of an intention to prevent the government from discovering the illegal aliens. In addition, it considered that the defendant's provision of apartments for the illegal aliens also served to permit the aliens to keep their identities under wraps.</span></div><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-8365294354349826595?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-61024568627167178762009-11-24T22:03:00.016-06:002009-11-25T22:36:56.409-06:00Sources for Closing Argument Stories » Aesop's Fables as a Winning Trial Advocacy Technique, Stories & Analogies to Persuade Jurors<span style="font-size:100%;"><a style="font-family: arial;" href="http://bit.ly/5eInQd"> <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Aesop's Fables" class="yoono-link-hover yoono-link-active-link"></yoono-highlight></a></span><span style="font-size:100%;"><a style="font-family: arial;" href="http://bit.ly/5eInQd"><yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Aesop's Fables" class="yoono-link-hover yoono-link-active-link">Aesop's Fables</yoono-highlight></a></span><span style="font-size:100%;"> </span><span style="font-size:100%;"><br /></span><span style="font-size:100%;"><br />The Tale of the <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Sour Grapes" class="yoono-link-hover yoono-link-active-link">Sour Grapes</yoono-highlight>, the Tale of the Lioness and the Vixen, the Tale of the Wolf in Sheep’s Clothing — these stories will not only educate your jurors, they’ll also entertain them.<br /><br /></span>This Online collection of <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Aesop's Fables" class="yoono-link-hover yoono-link-active-link">Aesop's Fables</yoono-highlight> includes a total of 655+ Fables, indexed in table format, with morals listed. Most were translated into English by Rev. George Fyler Townsend (1814-1900) and <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Ambrose Bierce" class="yoono-link-hover yoono-link-active-link">Ambrose Bierce</yoono-highlight> (1842-1914) the rest are from Jean De La Fontaine in French and translated to English. Real Audio narrations, Classic Images, Random Images, Random Fables, Search Engine. 127 Fairy Tales by Hans Christian Andersen.<br /><span style="font-size:100%;"></span><table background="/images/marb.jpg" bgcolor="#fff0cc" width="90%" border="4" cellpadding="4" cellspacing="2"><tbody><tr><th colspan="2"><div style="text-align: left;"><span style="font-size:85%;">The Images <img src="http://aesopfables.com/images/rdot.gif" alt="Image" /> and Audio <img src="http://aesopfables.com/images/audiot.gif" alt="Audio" align="bottom" border="0" /> are only accessible while reading the Fables. There are about 100 Fables in each of the first 4 sections.</span><br /></div> </th></tr> <tr><td><a href="http://aesopfables.com/aesop1.html"> Section 1</a> <img src="http://aesopfables.com/images/rdot.gif" alt="Image" /> <img src="http://aesopfables.com/images/audiot.gif" alt="Real Audio" align="bottom" border="0" /></td><td> Androcles -> The Eagle and the Arrow</td></tr> <tr><td><a href="http://aesopfables.com/aesop2.html"> Section 2</a> <img src="http://aesopfables.com/images/rdot.gif" alt="Image" /> <img src="http://aesopfables.com/images/audiot.gif" alt="Real Audio" align="bottom" border="0" /></td><td> The Eagle and the Jackdaw -> <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Jupiter" class="yoono-link-hover yoono-link-active-link">Jupiter</yoono-highlight> <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Neptune" class="yoono-link-hover yoono-link-active-link">Neptune</yoono-highlight> <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Minerva" class="yoono-link-hover yoono-link-active-link">Minerva</yoono-highlight> and Momus</td></tr> <tr><td><a href="http://aesopfables.com/aesop3.html"> Section 3</a> <img src="http://aesopfables.com/images/rdot.gif" alt="Image" /> <img src="http://aesopfables.com/images/audiot.gif" alt="Real Audio" align="bottom" border="0" /> </td><td> The Kid and the Wolf -> The Rich Man and the Tanner</td></tr> <tr><td><a href="http://aesopfables.com/aesop4.html"> Section 4</a> <img src="http://aesopfables.com/images/rdot.gif" alt="Image" /> <img src="http://aesopfables.com/images/audiot.gif" alt="Real Audio" align="bottom" border="0" /> </td><td> The Rose and the Amaranth -> The Young Thief and His Mother</td></tr> <tr><td><a href="http://aesopfables.com/aesopab.html"> Section 5</a> </td><td> Fantastic Fables by Ambrose Bierce - 245 Fables</td></tr> <tr><td><a href="http://aesopfables.com/aesopjdlf.html"> Section 6</a> <img src="http://aesopfables.com/images/rdot.gif" alt="Image" /> </td><td> Fables of Jean De La Fontaine - More in process of being translated</td></tr> <tr><td><a href="http://aesopfables.com/aesopsel.html"> Selected Fables</a> <img src="http://aesopfables.com/images/rdot.gif" alt="Image" /> <img src="http://aesopfables.com/images/audiot.gif" alt="Real Audio" align="bottom" border="0" /></td><td> 86 Fables selected for their ease of reading and concise moral understanding</td></tr> <tr><td><a href="http://aesopfables.com/aesophca.html"> Fairy Tales</a> </td><td> Fairy Tales of Hans Christian Andersen - 127 of them</td></tr> <tr><td><a href="http://aesopfables.com/timel1.html"> Timeline</a> </td><td> Graphic Timeline of 1000 BC - 500 BC</td></tr> <tr><td><a href="http://aesopfables.com/timeall1.html"> Timeline All</a> </td><td> Java Panorama Graphic Timeline of 1000 BC - 1000 AD</td></tr> <tr><td><a href="http://aesopfables.com/kidnap.html"> A Kidnapped Santa Claus</a> </td><td> A Short story by <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="L. Frank Baum" class="yoono-link-hover yoono-link-active-link">L. Frank Baum</yoono-highlight></td></tr> <tr><td><a href="http://aesopfables.com/aesoplfb.html"> The Life and Adventures of Santa Claus</a> </td><td>A medium length story by L. Frank Baum</td></tr> <tr><td><a href="http://aesopfables.com/aesopcd.html"> <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" keywords="A Christmas Carol" class="yoono-link-hover">A Christmas Carol</yoono-highlight></a> </td><td> The story of Scrooge by Charles Dickens</td></tr></tbody></table><br /><div id="TixyyLink" style="border: medium none ; overflow: hidden; text-decoration: none;color:transparent;"><span style="font-size:100%;"><a style="font-family: arial;" href="http://bit.ly/5eInQd"> <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Aesop's Fables" class="yoono-link-hover yoono-link-active-link"><br /></yoono-highlight></a></span></div><h2 style="font-family: arial; font-weight: normal;" class="posttitle"><a href="http://www.trialtheater.com/wordpress/closing-argument/10-sources-for-closing-argument-stories/" rel="bookmark" title="Permalink to Sources for Closing Argument Stories"><br /></a></h2><div id="TixyyLink" style="border: medium none ; overflow: hidden; color: rgb(0, 0, 0); background-color: transparent; text-align: left; text-decoration: none;"><br /></div><br /><h2 class="posttitle"><a href="http://www.trialtheater.com/wordpress/closing-argument/10-sources-for-closing-argument-stories/" rel="bookmark" title="Permalink to Sources for Closing Argument Stories"><br /></a></h2><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-6102456862716717876?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-86642184837824028302009-11-24T11:57:00.009-06:002009-11-24T12:08:37.381-06:00Immigration Stats, International Migration Data Hub, Country & Comparative Data<a href="http://bit.ly/6gZCs6">Migration Facts, Stats & Maps, Data Hub, Country and Comparative Data</a><br /><p>The MPI Data Hub showcases in-depth and latest data on immigrant trends and patterns in the United States and around the world. Research tools include US State Data on the Foreign Born, Maps of the Foreign Born, the World Migration Map, Comparative Charts and Tables, the Global Remittances Guide, and asylum data.</p> To date, the Data Hub has compiled stock, flow, citizenship, asylum, and historical data for 17 countries, including the United States, as well as extensive data from the US Census Bureau and Department of Homeland Security that cover the numbers and characteristics of immigrant populations residing in and arriving to the United States every year. We work with demographers and government experts to bring the most accurate and relevant data on international migration and immigrant integration together in one place. <p>Jump to research tools available on the following topics: <a href="http://www.migrationinformation.org/datahub/usimmigration.cfm" class="nobold"><strong>US Immigration</strong></a>, <a href="http://www.migrationinformation.org/datahub/integration.cfm" class="nobold"><strong>Immigrant Integration</strong></a>, <a href="http://www.migrationinformation.org/datahub/europe.cfm" class="nobold"><strong>European Migration</strong></a>, <strong><a href="http://www.migrationinformation.org/datahub/migration_development.cfm">Migration and Development</a></strong>, and <a href="http://www.migrationinformation.org/datahub/refugee.cfm" class="nobold"><strong>Refugee Protection</strong></a>. </p> <p>Data Manager: <strong>Jeanne Batalova, PhD</strong><br />MPI Data Hub’s team: <strong>Kirin Kalia, Aaron Terrazas</strong></p><strong></strong><p><span class="text2"><strong>Note on the comparability of country-specific data:</strong> Countries around the world publish international migration data based on various definitions. For example, some countries define immigrants based on their place of birth, while others use citizenship as their defining criteria. While the information published by some governments may initially appear identical, the different concepts used can affect the comparability of the data. Because of these differences, it is necessary to exercise caution when drawing conclusions based on the comparison of migration statistics of several countries. The Country and Comparative Data Tool presents country-specific data published by governments worldwide. The table choices available in the Country and Comparative Data Tool are limited by the countries’ preferred data formats as well as the general availability of the data.</span></p><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-8664218483782402830?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-14106107148735772272009-11-24T00:09:00.009-06:002009-11-24T00:23:19.880-06:00Defendants Get Enough Warning About a Guilty Plea's Consequences? 6th A. requires defense lawyers to advise on Immigration Consequences?<ul><li><a href="http://bit.ly/8OR8fH">Padilla v. Commonwealth of Kentucky</a></li><li><span style="font-size:100%;"><a target="_blank" class="post_title" href="http://www.scotusblog.com/wp/padilla-v-commonwealth-of-kentucky-interpreting-stricklands-applicability-to-misadvice-regarding-immigration-consequences-argument-recap/" rel="bookmark" title="">Padilla v. Commonwealth of Kentucky: Interpreting <em>Strickland</em>’s Applicability to Misadvice Regarding Immigration Consequences (Argument Recap)"><em><span style="font-weight: bold;"></span>Padilla v. Commonwealth of Kentucky</em>: Interpreting <em>Strickland</em>’s Applicability to Misadvice Regarding Immigration Consequences (Argument Recap)</a></span></li></ul>Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?<br /><br />"At oral argument in <em><a target="_blank" href="http://www.scotuswiki.com/index.php?title=Padilla_v._Commonwealth_of_Kentucky" onclick="javascript:urchinTracker('/outbound/www.scotuswiki.com/index.php?title=Padilla_v._Commonwealth_of_Kentucky?ref=/wp/?s=immigration');">Padilla v. Commonwealth of Kentucky</a></em> (08-651), the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys. Arguing on Mr. Padilla’s behalf, Stephen Kinnaird asserted that his client is entitled to relief because <em>any</em> advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards. Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between “the consequences that count and those that don’t,” Mr. Kinnaird assured them that the use of the <em>Strickland</em> test can address these contextual concerns. Mr. Kinnaird also emphasized the importance of <em>Strickland</em>’s prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas. However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea."<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-1410610714873577227?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-66728966713969732142009-11-23T12:33:00.005-06:002009-11-23T14:49:30.131-06:00Driver's Licenses For Undocumented Immigrants? Not in IllinoisDriver's Licenses For Undocumented Immigrants?<br /><br />In Illinois, a <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="social security number" class="yoono-link-hover yoono-link-active-link">social security number</yoono-highlight> is required to apply for a driver’s license, which makes it impossible for illegal immigrants to get one. But it also makes it difficult for some legal aliens to drive. Non-resident aliens—that is, people with H-1B status or other temporary work authorization—are allowed to apply for a social security card, but their spouse or children, who are in the country legally, are not. Therefore, they are also disqualified from obtaining a driver’s license.<br /><p>On May 11, 2008, the REAL ID Act went into effect, which requires all states to adhere to certain minimum requirements to ensure the security of state-issued licenses and identification cards. One of the stipulations is that states require a social security number for anyone who wishes to get a driver’s license. Recognizing that states needed time to implement REAL ID, the federal government issued extensions until December 2009, with probable further extensions until May 2011. At that time, however, all state-issued identification cards will require a social security number.</p><p>1. It appears, at least so far, all courts ruling on the merits of the matter have ruled that it is legal to bar illegal aliens from obtaining drivers’ licenses.<br /><br />If you have a valid driver's license from another state or country, you may use it to drive in Illinois throughout your stay (if you do not plan to become a permanent resident of this state).<br /><br />Federal law requires that drivers license applicants provide their Social Security numbers, and those numbers must be verified by the state before they can issue a license. For non-citizens, they must produce their passport and visa proving that they are here legally and have permission to remain for at least one full year beyond the date they receive their license. The license must expire no later than the visa. Anyone with less than one full year remaining on their visa cannot get a drivers license. (Federal Real ID Act of 2005, federal government has pushed back the date of compliance to May 11, 2011)<br /><br />ICE agents sometimes stake out DMVs looking for illegals -- hope you get caught! And police/state troopers likewise stake out DMVs due to the illicit activities relating to selling bogus licenses and assorted frauds going on. There have been a number of spectacular busts at DMVs<br />around the country, many of which have been reported in newspapers, online, etc.<br /><br />2. Illinois does not recognize the international driver's license, according to the Illinois Secretary of State website. http://www.cyberdriveillinois.com/departments/drivers/drivers_license/dlfaq.html<br /><br />3. Hawaii, Maryland, New Mexico, and Washington allow drivers to get licenses without proving they are legal residents. In states that allow illegal immigrants to drive — Maryland, Hawaii, New Mexico, and Washington — there have been attempts to reverse course. </p><a href="http://www.mikebakerlaw.com/undocdriverslicense.m4v">undocdriverslicense.m4v</a><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-6672896671396973214?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0tag:blogger.com,1999:blog-3527448956992946523.post-91038316751310183722009-11-23T10:05:00.016-06:002009-11-23T11:11:45.122-06:00What happens when your Immigration Case is Denied? Appeals to the Board of Immigration Appeals or Federal Courts from denial by IJ/officer<a href="http://bit.ly/6VMBHs">What Happens If Your Immigration Case is Denied?</a><br /><p><span style="">The <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="immigration act" class="yoono-link-hover yoono-link-active-link">Immigration Act</yoono-highlight> provides the opportunity to appeal decisions of immigration officers or immigration judges to a higher level. How, and which court or agency, your appeal should be directed is the subject of this blog.</span></p> <p><span style="">The Board of Immigration Appeals is found in </span><a href="http://en.wikipedia.org/wiki/Falls_Church,_Virginia" title="Falls Church, Virginia" class="mw-redirect">Falls Church, Virginia</a><span style="">, </span>and as of April 2009 has 14 Board Members, who are administrative judges appointed by the <a href="http://en.wikipedia.org/wiki/U.S._Attorney_General" title="U.S. Attorney General" class="mw-redirect">U.S. Attorney General</a>. <span style=""> Three member panels make most decisions, however, the whole board will hear the most important cases.</span> The size of the full BIA varies from time to time, depending on resignations, retirements and new appointments; it may have up to 15 Board Members under the current authorizing legislation. However, following the practice of appellate courts, many decisions of the BIA are by panels that are composed of only a few Board Members.</p> <p><span style="">The Board exercises appellate jurisdiction over various types of actions. These include a review of immigration judges' decisions in removal cases; decisions of USCIS District Directors and immigration judges on waiver applications; relative visa petition denials and approval revocations; bond, parole or detention determinations; and immi gration judges decisions on rescissions of adjustment of status. Also included in BIA review are a wide variety of applications, including fraud waivers under section 212(i) and waivers of inadmissibility under section 212(h). The BIA's review of deportation decisions includes a review over the chosen country of deportation; suspension of deportation (now cancellation) applications; voluntary departure applications; registry determinations; discretionary waiver application determinations; asylum applications; and adjustment of status applications. </span></p> <p><span style="">Only aggrieved parties have standing to appeal to the Board. In relative visa petition cases, this means only the petitioner (or the petitioner and the beneficiary together) may file the appeal. In removal cases, only the person ordered removed has standing to take an appeal to the BIA. The BIA has broad authority to review both issues of fact and issues of law, to make its own separate findings of fact and to exercise its broad discretionary powers as it sees fit. Usually, however, the Board will accept an <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="immigration judge" class="yoono-link-hover yoono-link-active-link">immigration judge</yoono-highlight>'s findings of fact, on the rationale that the trier of fact had the better opportunity to assess credibility. The BIA generally limits its review to matters in the hearing record, and will not consider new evidence on appeal, absent exceptional circumstances. </span></p> <p><span style="">You must file a notice of appeal on Form I-290A, with the applicable filing fee. The BIA may waive the filing fee for indigents. Appeals from decisions of immigration judges are filed directly with the BIA, while appeals from decisions of the immigration service are filed with the INS officer who has jurisdiction over the case. You must file the notice of appeal within the time periods specified in the regulations. In deportation cases, the Board must receive the notice within thirty days of the immigration judge's decision. The notice of appeal is not considered filed until it is actually received, with a filing fee. If the last day to file falls on a Saturday, Sunday or legal holiday, thereafter the period wherein to appeal is extended to the next business day. </span></p> <p><span style="">You must set out the specific reasons for the appeal on the notice of appeal form. Failure to follow this requirement may result in a summary dismissal by the Board. The Board may also dismiss appeals that are frivolous or filed solely for delay. If oral argument is desired, you must request it in the notice of appeal. The BIA thereafter has discretion whether to grant the request. You may submit a brief with the notice of appeal, or you can request more time, from the Board, wherein to submit your brief on appeal. </span></p> <p><span style="">The Administrative Appeals Office is in Washington, DC, and is under the jurisdiction of the commissioner of the immigration service. The AAO has jurisdiction over many types of actions including appeals from denials of employment-based preference petitions, appeals from denials of petitions for temporary workers (i.e., E, H, L, O, & P denials), appeals from revocation of approvals of immigrant visa petitions; reentry permit application denials; and appeals from denials of applications for waiver of the two-year foreign residence requirement based on exceptional hardship or fear of persecution. </span></p> <p><span style="">A single copy of a notice of appeal is filed on INS Form I-290B, with the proper filing fee, within 30 days of the service of notice of the denial. If the service of the denial is by mail, an added three days is added to the 30 days. If the last day to file falls on a Saturday, Sunday or legal holiday, the period wherein to appeal is extended to the next business day. Appeals should be filed with the local CIS office that issued the denial decision. An appeal is considered "filed" on the date which it is actually received at the CIS office. The notice of appeal must state the specific reasons which the appeal is based. Failure to do this may lead to a summary dismissal of the appeal. An appeal may also be dismissed if it is patently frivolous. If oral argument is requested, specific written reasons must be provided to explain why the argument is needed. A single copy of a brief may be submitted simultaneously with the notice of appeal, or you may submit your brief directly to the AAO within 30 days. In addition, for good cause shown, the AAO may extend the time wherein to file your brief. </span></p> <p><span style="">The regulations provide that in nonimmigrant or immigrant visa petition cases, only the petitioner has standing to appeal. However, the alien beneficiary may also join in an appeal filed by the petitioner. On an appeal to the AAO, you are not limited to discussing matters in the record below. You may submit new proof without any showing that the proof was unavailable earlier. Also, the regulations provide that the immigration service may, on its own, treat the appeal as a motion to reopen or reconsider. </span></p> <p><span style=""><b><u>Motions to Reopen or Reconsider</u></b>: </span></p> <p><span style="">An alien may file one motion to reopen or reconsider the decision of an immigration judge, the Board of Immigration Appeals, or the Administrative Appeals Office. For motions to reopen, the motion shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. The motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal, however, there is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for asylum or withholding of deportation and is based on changed country conditions arising in the country of nationality or the country whereto removal has been ordered, if such p roof is material and were not available and could not have been found or presented at the previous proceeding. </span></p> <p><span style="">A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, and shall state the errors of law or fact in the previous order and shall be supported by relevant authority. </span></p> <p><span style="">The motion is filed with the judicial body that made the last decision in the case, and must be accompanied by the applicable filing fee. A copy of the motion must be served upon the immigration trial attorney, if applicable. </span></p> <p><span style=""><b><u>Federal Court Appeals</u></b>:</span></p><p><span style=""><span style="">The Immigration Act of 1996 significantly changed many areas of judicial review. In fact, the federal courts are now prevented from reviewing many types of cases over which they previously held authority. In effect, the Act intended to end in many respects the role of the federal courts in immigration matters. </span> </span></p><p><span style="">Most of the changes are in section 242 of the immigration act. This section states that the federal courts shall have no jurisdiction to review decisions of immigration officers concerning aliens in expedited removal proceedings. In addition, no court shall have jurisdiction to review any judgment regarding the granting of relief under section 212(h), waiver of inadmissibility for criminal grounds; section 212(i), waiver of inadmissibility for fraud or misrepresentation; section 240A, cancellation of removal; section 240B, voluntary departure; or section 245, adjustment of status. Also, no appeal is permitted for an alien who is inadmissible or deportable because of having committed certain criminal offenses, or whose application for asylum was denied by the immigration service. (It should be pointed out that the constitutionality of many of these new provisions is being tested in the courts now. Therefore, it is possible that some of these new provisions will not stand. If any changes are made, they will be posted immediately to our web site). </span></p> <p><span style="">When an appeal to the federal courts is permitted, the petition for a review must be filed in the Court of A ppeals, which have jurisdiction over the case, which is the circuit where the immigration judge ended the case. The petition for a review must be filed in the court of appeals within 30 days of the removal order becoming final, and must be accompanied by the applicable filing fee. A copy of the petition must be served upon the Immigration and Naturalization Service. </span></p> <p><span style="">It must be noted that the filing of the petition for a review does not automatically stay removal of the alien from the United States. Therefore, a motion for a stay of deportation or removal should also be filed with the appeals court. </span></p> <p><span style="">Once the court of appeals has jurisdiction, it will establish a briefing schedule. These limits can only be changed if the court, for good cause shown, orders differently. </span></p> <p><span style="">If an alien fails to file a brief within the time called for, the court must dismiss the appeal unless a clear injustice would result. If the decision of an appeals court were not favorable to the alien, the only recourse would be to file a petition to the US Supreme Court.</span></p> <p><img src="http://www.callyourlawyers.com/Assets/pblawrule2.gif" width="620" height="24" /> </p><p>The “Real ID Act of 2005" was signed into law (Pub. Law No. 109-13) on May 11, 2005, as Division B of the Emergency Supplemental Appropriations Act for Defense, the Global <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="War on Terror" class="yoono-link-hover yoono-link-active-link">War on Terror</yoono-highlight>, and Tsunami Relief, 2005, and became effective on the date of enactment.</p> <p>(Sec. 101) Amends Immigration and Nationality Act (INA) provisions concerning asylum to: (1) authorize the Secretary of <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="Homeland Security" class="yoono-link-hover yoono-link-active-link">Homeland Security</yoono-highlight>, in addition to the Attorney General, to grant asylum (retroactive to March 1, 2003); (2) require asylum applicants to prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be (if removed) the <em>central reason</em> for their persecution; and (3) provide that an applicant's testimony may be sufficient to sustain this <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="burden of proof" class="yoono-link-hover yoono-link-active-link">burden of proof</yoono-highlight> only if the trier of fact determines that it is credible, persuasive, and fact-specific. Requires corroborating evidence where requested by the trier of fact unless the applicant does not have the evidence and cannot reasonably obtain it without departing the United States. States that the inability to obtain corroborating evidence does not excuse the applicant from meeting his or her burden of proof.</p> <p>Lists factors relevant to credibility determinations in asylum cases, including (but not limited to) the: (1) demeanor, candor, or responsiveness of the applicant or witness; (2) inherent plausibility of the applicant's or witness' account; (3) consistency between the applicant's or witness' written and oral statements; (4) internal consistency of each such statement; (5) consistency of such statements with other evidence of record (including the Department of State's reports on country conditions); and (6) any inaccuracies or falsehoods in such statements regardless of whether they go to the heart of the applicant's claim. States that there is no presumption of credibility.</p> <p>Makes this Act's provisions regarding proof requirements and credibility determinations in asylum proceedings applicable to other requests from relief for removal.</p> <p>Limits judicial review of determinations regarding the availability of corroborating evidence.</p> <p>Removes the numerical limit on the number of aliens granted asylum whomay become lawful permanent residents in any fiscal year (currently setat 10,000).</p> <p>Repeals provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) requiring a study and report on terrorists in the asylum system.</p> <p>(Sec. 103) Expands the grounds of inadmissibility and deportability due to terrorist or terrorist-related activity to include aliens who: (1) are representatives of terrorist organizations or political, social, or other groups that endorse or espouse terrorist activity; (2) are members of designated terrorist organizations; (3) are members of organizationsthat engage in specified acts of terrorism; (4) endorse or espouse terrorist activity or persuade others to do so; or (5) have received on behalf of any organization that at the time was a terrorist organization.</p> <p>(Sec. 105) Bars inadmissible arriving aliens from seeking judicial review of removal orders through habeas corpus, mandamus, or other extraordinary petitions.</p> <p>Imposes a similar bar on denials of discretionary relief and ordersagainst criminal aliens, with an exception for petitions for review concerning constitutional claims or pure questions of law.</p> <p>Establishes the INA's judicial review provisions as the sole avenue for challenging removal orders and reviewing claims arising under the United Nations Convention Cruel, Inhuman, or Degrading Treatment or Punishment.</p> <p>Requires petitions for review filed under pre-IIRIRA law to be treated as if filed under INA as amended by this section. States that such petitions shall be the sole and exclusive means for judicial review of orders of deportation or exclusion.</p> <p>(Sec. 106) Sets forth requirements for delivery bonds (guaranteeing delivery of an alien against whom the Department of Homeland Security(DHS) has issued an order to show cause or a notice to appear) and bonding agents. Requires such bonds to expire one year from the date of issue, at cancellation or upon surrender of the principal, or immediately upon nonpayment of the renewal premium. Authorizes annual renewal.</p> <p>Requires cancellation of delivery bonds and exoneration of the surety:<br /> </p><ul><li>(1) for nonrenewal after the principal's surrender for removal;<br /></li><li>(2) if the surety or bonding agent provides reasonable evidence of<br /> misrepresentation or fraud in the bond application;<br /></li><li>(3) upon the death or incarceration of the principal or the surety's inability to produce<br /> the principal for medical reasons;<br /></li><li>(4) if the principal is detained by a<yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="law enforcement agency" class="yoono-link-hover yoono-link-active-link"> law enforcement agency</yoono-highlight>;<br /></li><li>(5) if it can be established that the principal departed the United States without permission;<br /></li><li>(6) if the foreign state of which the principal is a national is designated under temporary<br /> protected status provisions after posting of the bond; or<br /></li><li>(7) if the principal is surrendered to DHS, upon removal by the surety or bonding agent.</li></ul> <p>Authorizes the surrender of the principal to DHS for removal at any time, before bond conditions are breached, if the surety or bonding agent believes that the principal has become a flight risk.</p> <p>States that a principal may be surrendered without the return of any bond premium if the principal: (1) changes address without providing advance written notice to the surety, bonding agent, and Secretary; (2) hides or is concealed from the surety, bonding agent, or Secretary; (3)<br /> fails to report to the Secretary annually; or (4) violates the contract with the bonding agent or surety, commits any act that may lead to a breach of the bond, or otherwise violates bond obligations or<br /> conditions.</p> <p>Gives bonding agents or sureties desiring to surrender the principal the<br /> right to:</p><ul><li> (1) petition the Secretary or any Federal court, without payment of fees or court costs, for an arrest warrant;<br /></li><li>(2) receive two certified copies of such warrant and the bond undertaking; and<br /></li><li>(3) pursue, apprehend, detain, and surrender the principal to any DHS detention official or facility or to any detention facility authorized to hold Federal detainees.</li></ul> <p>Requires all delivery bonds to be secured by a corporate surety that is<br /> certified as an acceptable surety on Federal bonds and whose name<br /> appears on Treasury Department Circular 570 and to set forth specified<br /> information. Requires information about warrants for a principal's<br /> arrest to be entered into the National Crime Information Center<br /> database.</p> <p>Gives bonding agents or sureties complete access to information about<br /> the principal held by Federal, State, or local governments (or any<br /> related subsidiary or police agency) that the Secretary determines may<br /> be helpful in locating or surrendering the principal.</p> <p>Establishes graduated penalties for bonding agents and sureties who fail to surrender a principal within 15 months of the issuance of an arrest warrant, subject to waiver. Gives bonding agents or sureties the absolute right to locate, apprehend, arrest, detain, and surrender any principal, wherever he or she may be found, who violates any bond term or condition. Limits total liability on any surety undertaking to the face amount of the bond.</p> <p>Makes this section applicable to bonds and surety undertakings executed before, on or after the date of enactment of this Act. </p> <p>(Sec. 107) Requires aliens arrested and detained pending a removal decision to post a delivery bond of at least $10,000 (currently, $1,500) in order to be released from custody, unless an <yoono-highlight onmouseout="___yoonoLink.onYoonoOut(this)" onmouseover="___yoonoLink.onYoonoOver(event,this)" onclick="___yoonoLink.onYoonoClick(this)" keywords="immigration judge" class="yoono-link-hover yoono-link-active-link">immigration judge</yoono-highlight> orders such alien's release on his or her own recognizance upon a finding that<br />the alien is not a flight risk and is not a threat to the United States.</p> <p>(Sec. 108) Requires the Secretary to take into custody any alien subject<br /> to a final order of removal and to cancel bond if the alien is produced<br /> within the prescribed time limit whether or not DHS accepts custody.<br /> States that the obligor on the bond shall be deemed to have<br /> substantially performed all conditions and shall be released from<br /> liability if the alien is produced within such time limit. Makes this<br /> section applicable to all immigration bonds posted before, on, or after<br /> the date of enactment of this Act.</p> <!-- #EndEditable --> <!-- #BeginLibraryItem "/Library/footer.lbi" --> <p align="center"><img src="http://www.callyourlawyers.com/Assets/pblawrule2.gif" alt="Ruled Line" width="620" height="24" /></p><p></p><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/3527448956992946523-9103831675131018372?l=www.callyourlawyers.com%2Flawblog.html' alt='' /></div>Mike Bakerhttp://www.blogger.com/profile/09792498109113276034noreply@blogger.com0