• Hours & Info

    (562) 495-0554
    M-F: 8:00am - 6:00 p.m.
    Sat: 9:00 a.m. - 12:00 p.m.
  • Social

  • Past Blog Posts

Mandatory Detention is not so Mandatory

Question: I have a friend who is in detention and I am being told he cannot get out because of mandatory detention. Can you elaborate what this is and why is he not permitted to exit?

Answer:  After 1996, the Immigration Laws were much more severe, including a very wide based mandatory detention policy. However, and finally, a case has just been issued by the BIA (Board of Immigration Appeals) which softens and narrows the mandatory detention policy.

The basic facts of the case is as follows. Luis Felipe Garcia-Arreola is a long-time permanent resident with a drug conviction.  This conviction makes Mr. Garcia-Arreola deportable but eligible for 212(c) relief.  After getting arrested on a domestic assault and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana, the case which originated the mandatory detention policy.

In a brave decision, Immigration Judge Teresa Holmes-Simmons distinguished Saysana with the facts of Mr. Garcia Arreola’s case and recognized that Saysana had been universally rejected by Federal District Courts.  DHS appealed and during this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Finally, the BIA overruled Saysana!

The good news:  the holding specifically states that mandatory detention applies where there has been a (a) release (b) from non-DHS custody (c) after October 8, 1998, (d) that is “directly tied” to the basis for detention under INA §§ 236(c)(1)(A)–(D).

The bad news:  Primarily because it was unaddressed by the parties, the Board left standing another horrible mandatory detention decision – Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), a deeply-divided Board decision which concluded mandatory detention applies even if ICE fails to assume custody of an alien “when released.”

The Board’s “resort to contortions” in Rojas and Saysana has only resulted in creating more chaos in our immigration detention system and wasted hours and resources on needless litigation, all in an effort to prevent an Immigration Judge from exercising discretion in bond redetermination decisions.  See Rojas, 23 I&N Dec. at 130 (dissent).

Thus, while there is good news in the issuance of this decision of narrowing the mandatory detention policies, there is work to do and we should continue to fight in the courts and the BIA to get other similarly bad decisions vacated or overruled.

Judicial Review

 
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 included restrictions on federal judicial review of deportation, exclusion and removal cases. Former INA § 106, passed in 1961 by the United States Congress, had provided the basis for judicial review of immigration matters until its elimination by IIRIRA which replaced it with INA § 242, [8 U.S.C.A. § 1252].
After the passage of IIRIRA, different procedures were created for judicial review of removal orders, including exclusion or deportation orders, and for immigration decisions generally. Decisions regarding judicial review of removal orders are now subject to INA § 242 [8 U.S.C.A. § 1252]. Review of immigration decisions outside of removal proceedings are governed by 28 U.S.C.A. § 1331 and the provisions of the Administrative Procedures Act and occur in the District Courts.
Judicial review of immigration decisions can be divided into three categories depending on the date of commencement of proceedings or issuance of a final order. If a person had a final order of deportation or exclusion entered before October 30, 1996, judicial review was governed by former INA § 106. Deportation or exclusion cases which were commenced on or before October 30, 1996—but where no final deportation or exclusion order had yet been issued—are subject to the transition rules under IIRIRA. Judicial review of post-IIRIRA removal proceedings initiated on or after April 1, 1997 are governed by INA § 242 [8 U.S.C.A. § 1252] which provide limited judicial review of many immigration matters.Except as provided in INA § 242(b) [8 U.S.C.A. § 1252(b)] (requirements for review of removal orders), judicial review of a final order of removal is governed by Chapter 158 of Title 28 of the United States Code, except that courts may not order taking of additional evidence under 28 U.S.C.A. § 2347(c). However, there are matters not subject to judicial review as outlined in INA § 242(a)(2) [8 U.S.C.A. § 1252(a)(2)]. Generally, judicial review of an order of removal lies with the circuit courts of appeals.
Under several provisions contained in IIRIRA, the United States Congress sought to simplify and expedite the removal of aliens, including either eliminating or severely limiting judicial review of immigration decisions as follows: 

(1) elimination or limitation of judicial review under INA § 242 [8 U.S.C.A. § 1252]: this provision contains a variety of court stripping or limiting provisions;
(2) elimination of review regarding discretionary decisions relating to detention, or release, including the grant, revocation or denial of bond or parole;
(3) elimination of review of decisions of the Attorney General or his or her successor regarding voluntary departure;
(4) elimination of challenges against the United States or its agencies or officers under INA § 279 [8 U.S.C.A. § 1329];
(5) restriction on judicial review of certain legalization claims other than in the context of review of a final order of deportation or removal unless the person filed within the original deadline or was refused (“front-desked”) by the legacy INS at the time and
(6) restriction on review of the denial of the right to seek asylum because the applicant; 

(a) could seek protection in a safe third country;
(b) was previously denied asylum;
(c) did not file the application within one year of entry; or
(d) is deemed to be a terrorist.
Despite the restrictions created by IIRIRA precluding judicial review of a broad range of immigration related matters, federal courts still retain jurisdiction to review jurisdictional facts and determine the proper scope, if any, of its own jurisdiction.
Generally, petitioners must exhaust all administrative remedies prior to requesting review of a final order. Additionally, petitioners must comply with general Article III requirements relating to subject matter jurisdiction, standing, ripeness, mootness and the political question doctrine. These and the other bars to judicial review noted above must be addressed prior to reaching the merits of a case

What are Grounds of Deportation?

Aliens are subject to removal from the United States for the following grounds of deportation:

Status violations: Persons who violate their immigration status in the United States may be subject to removal. Persons inadmissible at the time of entry are subject to removal under INA § 237(a)(1)(A) [8 U.S.C.A. § 1227(a)(1)(A)], which incorporates all of the grounds of inadmissibility. Additionally, persons in the United States in violation of the Immigration and Nationality Act or any other law of the United States are subject to removal INA § 237(a)(1)(B) [8 U.S.C.A. § 1227(a)(1)(B)]. For example, persons who remain in the United States longer than authorized and persons who enter the United States without inspection are within this group. Persons who fail to maintain non-immigrant status have violated their immigration status and are subject to removal. INA § 237(a)(1)(C) [8 U.S.C.A. § 1227(a)(1)(C)]. Under this provision, failure to maintain non-immigrant status and failure to comply with the terms, conditions and controls imposed under INA § 212(g) [8 U.S.C.A. § 1182(g)], concerning waivers for persons with communicable or physical or mental disorders, constitute deportable offenses. Aliens whose conditional permanent residence has been terminated are subject to removal as status violators. INA § 237(a)(1)(D) [8 U.S.C.A. § 1227(a)(1)(D)]. Aliens who have encouraged, assisted, abetted or aided illegal immigration at the time of any entry or within five years of any entry are subject to removal. INA § 237(a)(1)(E) [8 U.S.C.A. § 1227(a)(1)(E)].Finally, aliens who enter into fraudulent marriages for the purpose of obtaining immigration benefits are subject to removal. INA § 237(a)(1)(G) [8 U.S.C.A. § 1227(a)(1)(G)].
Public charge: If a person has within five years of entering the United States become a public charge resulting from causes not arising after entry, he or she will be subject to deportation under the public charge ground. INA § 237(a)(5) [8 U.S.C.A. § 1227(a)(5)].
Security and related grounds: Under INA § 237(a)(4) [8 U.S.C.A. § 1227(a)(4)], an alien is deportable who has engaged, is engaged, or at any time after entry has engaged in any activity to violate any law of the United States relating to espionage, sabotage, or laws prohibiting export of goods, technology, or sensitive information from the United States, any other criminal activity which endangers public safety or national security or any activity the purpose of which is to oppose, control, or overthrow by force, violence, or other unlawful means, the U.S. government. Under INA § 237(a)(4)(B) [8 U.S.C.A. § 1227(a)(4)(B)], an alien who has engaged, is engaging, or at any time after entry has engaged in any terrorist activity as defined in INA § 212(a)(3)(B)(iv) [8 U.S.C.A. § 1227(a)(3)(B)(iv)] is deportable. Under INA § 237(a)(4)(C) [8 U.S.C.A. § 1227(a)(4)(C)], an alien is deportable if the Secretary of State has reasonable grounds to believe that the presence or activities in the United States of such alien may have serious adverse foreign policy consequences. Finally, under INA § 237(a)(4)(D) [8 U.S.C.A. § 1227(a)(4)(D)], Nazi war criminals and persons who have engaged in conduct defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide.
Failure to register and falsification of documents: Aliens in the United States are required to report any change in address to the U.S. Citizenship and Immigration Services (USCIS). INA § 265 []. Failure to register a change of address is a deportable offense unless the alien can show that such failure was reasonably excusable or not wilful. INA § 237(a)(3)(A) [8 U.S.C.A. § 1227(a)(3)(A)]. An alien is deportable if he or she is convicted for a violation of INA § 266(c) [8 U.S.C.A. § 1306(c)] (fraudulent statements) or Section 36(c) of the Alien Registration Act; for a violation of the Foreign Agents Registration Act; or, for a violation of 18 U.S.C.A. § 1546 (relating to fraud and misuse of visas) regardless of sentence imposed. An alien with a final administrative order for a violation of INA § 274C (document fraud) is subject to removal. INA § 237(a)(3)(C)(i) [8 U.S.C.A. § 1227(a)(3)(C)(i)]. Finally, a person who falsely represents or who has falsely represented himself or herself to be a United States citizen to obtain benefits under the Immigration & Nationality Act, federal or state law is deportable8 U.S.C.A. § 1305. INA § 237(a)(3)(D) [8 U.S.C.A. § 1227(a)(3)(D)].
Unlawful voting: Under INA § 237(a)(6) [8 U.S.C.A. § 1227(a)(6)], any person who has voted in violation of any federal, state or local provision, statute, ordinance or regulation is subject to removal. A conviction is not required.
Criminal grounds: Aliens who are convicted of or admit to the commission of certain crimes, including multiple criminal convictions, crimes of moral turpitude, aggravated felonies, high speed flight, drug related offenses, firearms violations, and domestic violence, stalking and protective order violations, are subject to removal. INA § 237(a)(2) [8 U.S.C.A. § 1227(a)(2)].

Crimes of Moral Turpitude

 Alien’s conviction for credit card fraud in violation of California Penal Code Sec. 532a(1) was a crime involving moral turpitude. Absent an explicit adverse credibility finding, immigration judge may not require corroboration of alien’s testimony.
Tijani v. Holder – filed March 11, 2010
Cite as 05-70195

New Immigration Case about Asylum from Iran

Alien seeking to reopen removal proceedings failed to provide evidence of changed conditions in Iran where proffered evidence recounted generalized conditions in Iran similar to those that existed during alien’s initial asylum hearing and failed to show how alien’s predicament was appreciably different from the dangers faced by her fellow citizens. Failure by Board of Immigration Appeals to give reasons detailing why alien’s affidavit concerning her intent to be politically active in Iran did not present previously unavailable, material evidence was arbitrary, irrational, or contrary to law. Claim based on hatred of Iranians for Americans cannot justify asylum. Even if “westernized” women were a disfavored group of which alien was a member, alien failed to provide evidence of an individualized threat to persecute her, and so she could not establish a well-founded fear of future persecution.
Najmabadi v. Holder – filed March 9, 2010
Cite as 05-72401

Stepparent

A stepparent who qualifies as a “parent” under section
> 101(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(2)
> (2006), at the time of the proceedings is a qualifying relative for purposes of
> establishing exceptional and extremely unusual hardship for cancellation of
> removal
under section 240A(b)(1)(D) of the Act, 8 U.S.C. §
> 1229b(b)(1)(D)(2006)

Denial of petitions and removal are issued for drug conviction

Removal qualifications are clarified under new standards of of petitions. CA9 denied petition, finding conviction under Cal. Health & Safety Code § 11379(a), qualifies for removal, so long as substance involved is determined to have been controlled substance under the modified categorical approach

%d bloggers like this: