For discussion of President Obama’s Executive Action proposal and legal arguments regarding Presidential authority to pass such action see:
For discussion of President Obama’s Executive Action proposal and legal arguments regarding Presidential authority to pass such action see:
Mira Law Group Attorney Stanley Radtke’s appeal of a BIA decision, which he spearheaded as an Associate with his former employer, was ruled upon by the Ninth Circuit in an En Banc opinion. The Court affirmed Stanley’s argument, in part, by overruling the BIA rejection of Petitioner’s claim because he failed to prove that internal relocation was impossible. The Court ruled that neither the Petitioner nor the government should bear the burden to prove that internal relocation is impossible, when considering a non-citizen’s claim for withholding of removal pursuant to the Convention Against Torture. Rather, to the extent that internal relocation is an issue in the case, the Immigration Court should consider it when determining whether it is more likely than not that the Petitioner would be tortured if removed.
In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.
In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.
The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.
Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.
Democratic and Republican senators unveiled this Tuesday a long-waited landmark legislation, giving millions of illegal immigrats an opportunity to eventually become U.S. citizens
Under this proposal, undocumented immigrants who came to the United States before December 31 2011, and had stayed in the country continously could apply for a “provisional” legal status as soon as six months after de bill is signed by the president.
Beyond that, they would have to wait a decade or more for full citizenship which would entitle them to federal benefits, while the government works on further securing U.S. borders and enforcing the new immigration law.
Even with the many caveats, the proposal faces months of debate, scores of amendments and potentially significant opposition, particularly in the Republican-controlled House of Representatives.
The bill sets a goal of stopping 90 percent of illegal crossigs at the riskiest sections of the southern border with Mexico, either by catching people or forcing them to go back to their country.
More Visas For Some Jobs
The proposal would expand access to both low- and high-skilled labor for American Businesses, attempting to keep organized labor happy with provisions designed to keep companies from hiring cheap foreign labor or filing jobs with immigrants when U.S. workers are available.
10 Years for the Green Card
After 10 years the immigrants could apply for a “green card”, or permanent resident status, through an extended merit-based immigration system. Those applications could be processed whether or not the government achieved a 90 percent success rate in securing border hot spots.
The green card would not be automatic, although a Senate aide said the majority of the 11 million illegal immigrants would likely get it via the merit-based visa. The total amount of penalties paid would amount to $2000.
After the 10-year wait for the green card, it could take an additional three years to win U.S. Citizenship
The Secretary of Homeland Security Janet Napolitano has extended Temporary Protected Status (TPS) for eligible nationals of El Salvador for an additional 18 months, beginning Sept 10, 2013 ending March 9, 2015.
Salvadorian Beneficiaries seeking to extend their TPS must re-register during the 60 day re-registration that will be available starting May 30, 2013, through July 29, 2013. The USCIS office recommends beneficiaries to register as soon as possible once the 60 day period begins.
This 18 month extension allowa TPS re-registrants to apply for a new employment authorization document (EAD). Salvadorian TPS beneficiaries who re-register during this registration period will receive a new EAD with an expiration date of March 9, 2015. The USCIS recognizes that some re-registrants may not receive their EAD until the current one expires. USCIS is automatically extending current TPS El Salvador EADs bearing in September 9, 2013, expiration date for additional six months. These existing EADs are now valid through march 9, 2014.
The Board of Immigration Appeals sustained the removal order and the case was brought to the Ninth Circuit by my former office. I completed all the briefing, raising the legal issue that the IJ impermissibly held appellant to an incorrect standard, namely that under Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), that a CAT petitioner must establish that internal relocation is “impossible.” I argued that just as in this case, where the petitioner has established past torture, the burden should shift to the government to prove that relocation is possible, pursuant to Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011).
There is seemingly a split of authorities in the Ninth Circuit on this questions and this case is being considered for an en banc decision on what is the correct procedure. My contention is that Perez-Ramirez should be the standard.
“As we have previously acknowledged, “it will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country.” Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir.2005). Thus, when the past-persecution is shown, the government bears the burden to show by a preponderance of the evidence that the petitioner can move elsewhere within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003) (“[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can relocate internally to an area of safety.”). Additionally, when petitioner “has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable.” Id.
The Obama administration has used prosecutorial discretion, or the decision to use limited resources to enforce some cases over others, to grant some undocumented immigrants a reprieve, while continuing a high level of deportations more broadly.
House Republicans said passing the bill was necessary because the president had shown an unwillingness to enforce the law and a desire to go around Congress, including through the Deferred Action for Childhood Arrivals policy.
“We have seen a pattern: President Obama circumvents Congress when he doesn’t get his way,” Judiciary Committee Chairman Bob Goodlatte (R-Va.) said on the House floor in support of the bill. “But the Constitution does not confer upon the president the executive authority to disregard the separation of powers and rewrite acts of Congress based on his policy preferences.”
The Obama administration threatened to veto both bills should they come to the president’s desk, and White House spokesman Jay Carney criticized them during a press briefing, noting the contrast between the legislation and some Republicans’ stated desires to work on immigration reform.
“It is, in my view, in our view, pretty amazing that today House Republicans went in the opposite direction by passing legislation targeting the deferred action for childhood arrivals policy that removed the threat of deportation for young people brought to this country as children, known as Dreamers,” he said, adding later, “It doesn’t require much to look at what House Republicans are doing today and question whether or not they’re serious about moving forward on comprehensive immigration reform.”
“Instead of voting to fix our broken immigration system as the Senate did in June, House Republicans today voted to prevent the President from fixing the problems that are within his constitutional authority to solve,” Reid said. “These irresponsible Republican bills are dead on arrival in the Senate. I strongly support the President’s decision to protect DREAMers from deportation. Republicans should try solving problems for a change instead of blocking progress for our nation and making life more difficult for the immigrant community.”
Obama Administration Announces a Relaxations of Some Restrictions on Asylees Found to Have Aided Terrorist Organizations
The new exemptions apply to “limited material support,” which a DHS spokeswoman said is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”
DHS provided a series of examples of individuals who would have been ineligible for asylum or refugee status before the new exemptions, including business owners who unwittingly provided service to members of a terror group, aid workers who assisted members of a terror group during the aftermath of a natural disaster or civil conflict and people who had to pay a toll or tax to a terror group to pass through opposition-occupied territory.
“For instance, an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group; or a mother or father who — as any parent would — fed and clothed their young adult child, even when they knew their child is part of a resistance movement,” the DHS spokeswoman said.
Aside from the Federal Register publication, the only public notice announcing the changes came from Sen. Patrick Leahy (D-Vt.), who has for years been championing a change in the “material support” definition.
“The existing interpretation was so broad as to be unworkable. It resulted in deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational person would consider them supporters of terrorist activities,” Leahy said. “These changes help return our nation to its historic role as a welcoming sanctuary to the world’s most vulnerable populations.”
U.S. Government Tells Federal Judge They Cannot Produce the Names and Identities of All Immigration Detainees Held for More Than 6 Months
The ACLU eventually filed a Freedom of Information Act lawsuit in Manhattan federal court in 2011 seeking documents from the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement.
The ACLU questioned the practice of “prolonged immigration detention — for months, if not years — without adequate procedures in place to determine whether their detention is justified.” It cited a dramatic increase in the number of immigration detainees in recent decades, noting they weren’t serving criminal sentences but were being detained by the thousands to ensure they’re available for removal from the country if removal is ordered and appeals are exhausted.
The judge said the government’s continued refusal to produce documents had stymied efforts to reform a system in which thousands of immigrant detainees, some applicants for asylum, languish in immigration jails longer than six months.
He also attacked as “painstaking and riddled with further delay” the government’s process for releasing documents, saying the government hasn’t produced any documents since his Sept. 9 order to release documents and had at times claimed it would take seven years to produce 100 files.
The government, though, said in its letter it is “not feasible” to produce documents from more than 22,000 individual files as ordered but said it can produce a reliable sample of 385 files within 15 months, with rolling releases within eight weeks of a revised order.
In 2009, The Associated Press conducted a computer analysis of an Immigration and Customs Enforcement database obtained under the Freedom of Information Act, finding there were 32,000 immigrants from 177 countries detained, including more than 18,000 with no criminal convictions.
The analysis showed that nearly 10,000 had been in custody more than a month, that 400 of those with no criminal records had been locked up more than a year, that a dozen had been held for three years or more and that one man from China had been incarcerated more than five years. Many of the longest-term non-criminal detainees were asylum seekers.
The analysis was referenced in the ACLU lawsuit.
According to a 2001 U.S. Supreme Court ruling, immigrants are supposed to be deported or released within about six months. The steady increase in the number of immigrants held behind bars grew considerably after Congress passed a pair of laws in 1996 requiring immigrants who committed crimes be locked up for deportation. The numbers continued to rise after the Sept. 11, 2001, terrorist attacks and amid anti-immigrant political rhetoric.
Welcome to WordPress. This is your first post. Edit or delete it, then start blogging!