Immigration Law Inside News

W.D. Wa. on 'When...Released,' Mandatory Detention: Morelos v. ICE

skiramen@gmail.com (Daniel M. Kowalski) — Sat, 18 May 2013 17:26:00 -0400

"The parties dispute whether the phrase "when . . . released" makes § 1226(c) inapplicable when the government detains the alien after he or she is released from custody for a deportable offense. Mr. Morelos argues--and Magistrate Judge Donohue agrees--that, by virtue of the "when ... released" language in the statute, 8 U.S.C. § 1226(c) is only applicable if ICE detains an alien at the time he or she is released from custody for the deportable offence. According to Mr. Morelos and Magistrate Judge Donohue, because ICE detained Mr. Morelos several years later, 8 U.S.C. § 1226(c) does not apply. Therefore, he should have been detained under 8 U.S.C. § 1226(a) and given a bond hearing. ... ICE has not demonstrated that it detained Mr. Morelos upon, or reasonably soon after, the state released him from custody for a 2010 drug trafficking crime. Indeed, it appears from the parties briefing that ICE detained Mr. Morelos a substantial period of

N.D. Ga. on 1447(b) Jurisdiction: Edobor v. Onyango

skiramen@gmail.com (Daniel M. Kowalski) — Sat, 18 May 2013 17:04:00 -0400

"The majority view and prevailing wisdom is that the Court's jurisdiction under Section 1447(b) is exclusive, and USCIS is divested of its authority to subsequently determine a naturalization application unless the Court exercises its statutorily granted authority to "remand the matter" to USCIS. "Consequently, any adjudication by the [USCIS] made after the Complaint was filed was without statutory or other legal authority and could not have constituted final adjudication divesting [the] Court of its exclusive jurisdiction over the matter." Izraileva v. Chertoff, 629 F. Supp. 2d 1286, 1293 (M.D. Fla. 2007). Defendant's Motion to Dismiss [Doc. 7] is therefore DENIED. Not surprisingly, in a last ditch effort, Defendants request in their Reply that the Court remand this matter to USCIS for a determination of Plaintiff's application for naturalization. Plaintiff opposes remand, arguing that the Court should exercise its jurisdiction to conduct a

CA9 on Silva-Trevino: Olivas-Motta v. Holder (REVISED)

skiramen@gmail.com (Daniel M. Kowalski) — Fri, 17 May 2013 13:43:00 -0400

"Petitioner Manuel Olivas-Motta is a lawful permanent resident charged with removal under 8 U.S.C. § 1227(a)(2)(A)(ii) based on his alleged “conviction of” two crimes involving moral turpitude (“CIMTs”). Petitioner concedes that the first conviction was for a CIMT. He contends that the second was not. The Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) concluded that the second conviction was for a CIMT, relying on police reports to determine the nature of the conviction. The Attorney General held in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), that an IJ may rely on evidence outside the record of conviction to determine whether a petitioner has been “convicted of” a CIMT. We join the Third, Fourth, and Eleventh Circuits in holding that Silva-Trevino was wrongly decided. We hold that an IJ and the BIA are confined to the record

The Disappearing FAM

skiramen@gmail.com (Daniel M. Kowalski) — Fri, 17 May 2013 12:09:00 -0400

On March 12, 2013 the State Department posted CT:VISA-1977 to the FAM, a 22-page update to 9 FAM 40.63 on INA Sec. 212(a)(6)(C)(i) (false claim to U.S. citizenship). On May 1, 2013 the State Department 'unassigned' CT:VISA-1977. Will Sec. Kerry tell us why? (The answer, my friend, is blowin' in the wind...)

Arizona's 'No DLs for DACAs' Policy May Not Survive Equal Protection (Rational Basis) Challenge

skiramen@gmail.com (Daniel M. Kowalski) — Fri, 17 May 2013 11:02:00 -0400

While most news articles focus on Judge Campbell's March 16, 2013 denial of Plaintiffs' motion for preliminary injunction in ADAC et al. v. Brewer et al., CV12-02546 PHX DGC, of greater import is Judge Campbell's position on Plaintiffs' equal protection (rational basis) argument:

"When the Court considers what appears to be the actual reason for Arizona’s driver’s license policy, it concludes that the policy is likely to invoke, and fail, such rational basis scrutiny. ... The Court recognizes that a governor may legitimately disagree with the federal government on policy and political matters, and certainly has the right to voice those disagreements. But the Court cannot conclude that such views constitute a rational basis for treating similarly situated people differently with respect to driver’s licenses. ..

BIA (unpub.) on Duress, Particularly Serious Crime

skiramen@gmail.com (Daniel M. Kowalski) — Thu, 16 May 2013 17:56:00 -0400

Jon Bauer writes: "I'm pleased to attach this decision recently issued by the Board of Immigration Appeals in a case handled by the Asylum and Human Rights Clinic at the University of Connecticut School of Law. Our client is a longtime U.S. permanent resident from Zimbabwe whose father was a vocal opponent of the Mugabe regime. She came to the U.S. as a child, and attended high school and college here, but later became involved with an abusive boyfriend who coerced her into carrying drugs for him. Her abuser threatened to beat and sexually abuse her son if she refused. She was convicted of a drug trafficking crime, but the sentencing judge found that had acted under duress and issued a lenient sentence. The Immigration

A New Name for US-VISIT: OBIM

skiramen@gmail.com (Daniel M. Kowalski) — Thu, 16 May 2013 17:47:00 -0400

"The Office of Biometric Identity Management (OBIM) supports the Department of Homeland Security's responsibility to protect the nation by providing biometric identification services that help federal, state, and local government decision makers accurately identify the people they encounter and determine whether those people pose a risk to the United States. OBIM supplies the technology for collecting and storing biometric data, provides analysis, updates its watchlist, and ensures the integrity of the data. OBIM was created in March, 2013, replacing the United States Visitor and Immigration Status Indicator Technology (US-VISIT) and streamlining operations." - DHS, undated.

BIA (unpub.) on Egregious 4th Amendment Violation: CBP 'Smelled' Undocumented Aliens in Car

skiramen@gmail.com (Daniel M. Kowalski) — Thu, 16 May 2013 10:26:00 -0400

Enrique Soto-Garcia, A087 534 842 (BIA May 7, 2013) - "In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an immigration judge's finding that Border Patrol agents committed an egregious Fourth Amendment violation when they pulled over the car in which the respondent was travelling because they could "smell undocumented aliens." The BIA further agreed that the government could not establish the respondent's alienage by relying on copies of the children's birth certificates submitted during a bond hearing; records from the Mexican National Population Registry submitted during the suppression hearing; or evidence from the USCIS Central Index System submitted after the suppression hearing. The BIA remanded the case, however, for clarification

Major CA9 Decision re Mexico, Zetas, Asylum, Withholding, CAT: Tapia Madrigal v. Holder

skiramen@gmail.com (Daniel M. Kowalski) — Wed, 15 May 2013 15:06:00 -0400

"Victor Hugo Tapia Madrigal, a former member of the Mexican military, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying him asylum, withholding of removal and relief under the Convention Against Torture (CAT). Because the BIA’s decision employed incorrect legal standards and rests on factual findings not supported by substantial evidence, we grant the petition for review and remand to the BIA. ... We grant Tapia Madrigal’s petition with respect to his claim for social group based asylum – both past persecution and fear of future persecution – withholding of removal and CAT relief and remand to the BIA for further consideration consistent with this opinion." - Tapia Madrigal v. Holder, May 15, 2013. [Hats way off to pro bono counsel

Unpub. BIA CAT / Mental Competency Remand (Ethiopia/Eritrea)

skiramen@gmail.com (Daniel M. Kowalski) — Wed, 15 May 2013 12:46:00 -0400

Stephen Yale-Loehr writes: "Our Cornell immigration appeals clinic just won an unpublished remand from the BIA in an interesting Ethiopian/Eritrean CAT case. The case largely concerned Matter of M-A-M- mental competency issues. The BIA also ordered the IJ to conduct additional fact-finding on remand concerning our client's country of citizenship and CAT eligibility. [Linked here are] the

EOIR to Host Stakeholder Meeting on eRegistry

skiramen@gmail.com (Daniel M. Kowalski) — Wed, 15 May 2013 12:11:00 -0400

"The Executive Office for Immigration Review (EOIR) invites interested parties to participate in a meeting regarding EOIR’s new electronic registration initiative, eRegistry, for attorneys and fully accredited representatives.

DATE: Friday, June 7, 2013, at 2 p.m.

LOCATION: 5107 Leesburg Pike, Suite 1800, Falls Church, VA, 22041.

RSVP: To RSVP for the meeting, please contact Lauren Alder Reid, Counsel for Legislative and Public Affairs, 703-305-0289, PAO.EOIR@usdoj.gov, by May 31, 2013. In-person attendance will be limited to the first forty (40) individuals to RSVP. Those who are unable to attend in person will be able to participate via teleconference and to view meeting slides via the Internet during the meeting. Call-in and Web access information will be available to those who RSVP. To attend the meeting via conference

USCIS Podcasts: Civil Surgeons, Form I-693

skiramen@gmail.com (Daniel M. Kowalski) — Wed, 15 May 2013 12:00:00 -0400

"USCIS collaborated with the Centers for Disease Control and Prevention (CDC) to create a series of podcasts for civil surgeons. We plan to post four segments covering:

Immigration basics and Form I-693, Report of Medical Examination and Vaccination Record;

Inadmissible communicable diseases;

Physical and mental disorders; and

Vaccination requirements for the immigration medical examination.

The first installment is available below and can be streamed or downloaded.

Karimi v. Holder, May 13, 2013. [Hats off to court-appointed counsel David M. Belczyk<

EOIR Launches Online Registration for Immigration Practitioners

skiramen@gmail.com (Daniel M. Kowalski) — Tue, 14 May 2013 13:15:00 -0400

"The Executive Office for Immigration Review (EOIR) today announced that, effective June 10, 2013, it will rollout electronic registration for attorneys and fully accredited representatives who represent aliens in proceedings before EOIR’s immigration courts and the Board of Immigration Appeals. The eRegistry will be implemented as specified in the May 14, 2013, Federal Register Notice. After December 10, 2013, all attorneys and fully accredited representatives must have completed the registration process in order to appear as a representative before the immigration courts and the Board of Immigration Appeals.

Currently, immigration practitioners provide notice of their appearances before EOIR’s adjudicators by submitting Form EOIR-27, “Notice of Entry of

CA6 on Asylum, Germany, Homeschooling: Romeike v. Holder

skiramen@gmail.com (Daniel M. Kowalski) — Tue, 14 May 2013 12:54:00 -0400

"There is a difference between the persecution of a discrete group and the prosecution of those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in particular or homeschoolers in general for persecution. As a result, we must deny the Romeikes’ petition for review and, with it, their applications for asylum." - Romeike v. Holder, May 14, 2013.

EOIR Notice: Registry for Attorneys and Representatives

skiramen@gmail.com (Daniel M. Kowalski) — Tue, 14 May 2013 10:15:00 -0400

"The Executive Office for Immigration Review (EOIR) has established a mandatory electronic registry for attorneys and accredited representatives who practice before EOIR’s immigration courts and Board of Immigration Appeals (BIA or Board). This notice provides additional instructions regarding the registration process. DATES: Attorneys and accredited representatives will be able to register beginning on June 10, 2013. After December 10, 2013, attorneys and accredited representatives must be registered in order to practice before EOIR’s immigration courts and the Board and may be subject to administrative suspension for failure to register." - Federal Register/ Vol. 78, No. 93 / Tuesday, May 14, 2013.

USCIS, May 10, 2013 - "This Notice contains important information that may pertain to you. Please read it carefully. Under the Settlement Agreement in B.H., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.) (also referred to as “ABT Settlement Agreement”), certain individuals who seek to file an asylum application or have already filed an asylum application, are entitled to new procedures relating to the crediting of time toward eligibility for employment authorization

DOS Final Rule: Exchange Visitor Program - Fees and Charges

skiramen@gmail.com (Daniel M. Kowalski) — Tue, 14 May 2013 09:52:00 -0400

"The U.S. Department of State (Department) is revising regulations to increase the Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J–1 Visa Holder) Benefits assessed for providing Exchange Visitor Program services, in order to recoup the costs incurred by the Department’s Bureau of Educational and Cultural Affairs associated with operating the Exchange Visitor Program. DATES: Effective Date: This rule is effective June 13, 2013. ... The following fees are prescribed. (1) For filing an application for program designation and/or redesignation (Form DS–3036)— $3,982.00. (2) For filing an application for exchange visitor status changes (i.e., extension beyond the maximum duration, change of category, reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship authorization, and permission to issue)—$367.00." -

San Diego IJ CAT Victory: Mexico, Mental Illnesses

skiramen@gmail.com (Daniel M. Kowalski) — Mon, 13 May 2013 12:34:00 -0400

Hats off to Cleveland attorney Anna Markovich, who represented the respondent pro bono at the BIA and as amicus curiae on remand. - "Upon a thorough evaluation of all the evidence and after very careful consideration of the BIA remand Order, the Court concludes that the respondent has met his burden of proof for deferral of removal under the CAT. ... respondent has met his burden to show that the evidence establishes that the long-term use of physical restraints and psychotropic drugs constitutes torture in his case. Furthermore, the Court finds that torture is probable. ... the use of physical restraints and psychotropic drugs is widespread in Mexican mental institutions, especially in the cases of patients who are self-abusive like the respondent. Therefore, the Court finds that the respondent has met his burden to show that it is more likely

More Amazing BIA Unpubs on Immigrant & Refugee Appellate Center

skiramen@gmail.com (Daniel M. Kowalski) — Mon, 13 May 2013 12:16:00 -0400

For example: Jose Javier Linares-Valencia, A059 170 269 (BIA Aug. 23, 2012) - "In this unpublished decision, the Board of Immigration Appeals (BIA) returned the case for further proceedings because the Immigration Judge did not advise the respondent, a lawful permanent resident (LPR), of his right to be represented by counsel or ascertain whether he wished to proceed without an attorney; did not ask the respondent if he conceded removability; did not explain why he found the respondent's conviction constituted a crime involving moral turpitude or why the respondent was ineligible for a waiver; and did not issue a separate oral or written decision." - Immigrant & Refugee Appellate

Advance Copy of DOS Final Rule: Exchange Visitor Program – Fees and Charges

skiramen@gmail.com (Daniel M. Kowalski) — Mon, 13 May 2013 11:30:00 -0400

"The U.S. Department of State (Department) is revising regulations to increase the Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits assessed for providing Exchange Visitor Program services, in order to recoup the costs incurred by the Department's Bureau of Educational and Cultural Affairs associated with operating the Exchange Visitor Program." - FR Doc. 2013-11484 Filed 05/13/2013 at 8:45 am; Publication Date: 05/14/2013.

June 2013 Visa Bulletin

skiramen@gmail.com (Daniel M. Kowalski) — Sat, 11 May 2013 14:19:00 -0400

"The Employment-based Third preference category cut-off date for most countries has advanced significantly for a second month in a row. This recent movement of the dates is not indicative of what can be expected in the future. Rapid forward movement of cut-off dates is often followed by a dramatic increase in demand for numbers within three to six months. Once such demand begins to materialize the cut-off date movement will begin to slow, or even stop for a period of time." - Department of State Publication 9514, CA/VO: May 9, 2013.

OCAHO Reduces I-9 Fine from $49K to $9K: USA v. Siwan & Brothers, Inc.

skiramen@gmail.com (Daniel M. Kowalski) — Fri, 10 May 2013 14:10:00 -0400

"As explained in United States v. Pegasus Restaurant, Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties. The amount should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent's resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). A final factor in favor of leniency toward this small employer is the legislative policy preference reflected in the Small Business Regulatory Enforcement Fairness Act of 1996, § 223(a), Pub. L. No. 104-121 (codified at 5 U.S.C. § 601 note (2006)), that calls generally for reducing civil penalty assessments on small entities. Cf. Balice v. USDA, 203 F.3d 684, 691 n.5 (9th Cir. 2000).10 OCAHO no. 1178. Penalties will accordingly be adjusted as a matter of discretion to an amount nearer the lower end

OCAHO Reduces I-9 Fine from $82K to $15K: USA v. Siwan & Sons, Inc.

skiramen@gmail.com (Daniel M. Kowalski) — Fri, 10 May 2013 14:05:00 -0400

"As explained in United States v. Pegasus Restaurant, Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties. The amount should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent's resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). A final persuasive factor in favor of leniency to this small employer is the legislative policy preference expressed in the Small Business Regulatory Enforcement Fairness Act of 1996, § 223(a), Pub. L. No. 104-121 (codified at 5 U.S.C. § 601 note (2006)), that calls generally for reducing civil penalty assessments on small entities. Cf. Balice v. USDA, 203 F.3d 684, 691 n.5 (9th Cir. 2000). Penalties will accordingly be adjusted as a matter of discretion to an amount nearer the lower end of the penalty range

BIA on Imputed Residence: Matter of Montoya-Silva, Int. Dec. No. 3781, 26 I&N Dec. 123 (BIA 2013)

skiramen@gmail.com (Daniel M. Kowalski) — Thu, 09 May 2013 15:55:00 -0400

Matter of Montoya-Silva, Int. Dec. No. 3781, 26 I&N Dec. 123 (BIA 2013) - A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.