Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I lost my case at the Immigration Court. I understand that I have many issues that I can appeal and that there is a very reasonable chance that I could win. Can you let me know where my appeal goes and what might happen?

Answer: There are many Immigration Courts in the U.S. All together there are about 55 Immigration Courts through all 50 States as well as in Puerto Rico. Whenever you lose at the Immigration Court level, you appeal to the Board of Immigration Appeals or the BIA. There is only one BIA in the entire United States. The BIA is located in Virginia and handles all of the appeals of every Immigration Court throughout the entire United States.

The Notice of Appeal must be in the hands of the BIA no later than 30 days after issuance of the decision from the Immigration Judge. Afterwards, it goes to a panel of three of the members of the Board of Immigration Appeals and in about one year the decision is issued.

Question: I have heard that there will be some changes at the BIA. Is that true and what are they?

Answer: Yes it is true. The changes are not for the better. In fact, the changes will make the appeal process to the BIA an exercise in futility and will deny numerous rights to immigrants and their rights to appeal. Attorney General Ashcroft has just issued regulations to go into effect later this month that will change some of the basic ways that the BIA decides cases. First, they will no longer make a three member panel to decide cases, but only one member will decide. Only on cases of novel importance or ones that are unusually complicated will it be referred to a three member panel. Who decides if a case is novel or unusual is unclear. In all other real appeals (other than the new BIA regulations) it goes to a three member panel. This gives the person appealing the knowledge and satisfaction that the appeal will be decided among three qualified persons who must come to a consensus. Now, the appeal at the BIA, for the most part, is in the hands of one person. This item by itself takes away much of the due process and fairness to the immigrant.

Next, there is now a timetable that is set for deciding the case. Thus, rather than taking the necessary time to properly decide the case, the Attorney General has mandated that the cases take around 6 months. Thus, again there is a violation of the Due Process rights of immigrants. An appeal should not have as its primary importance the number of days or months it must be decided. What this will do is make a single member rush through cases to make sure that the timetable is met, rather than the case being decided on its merits.

Question: What will happen if the BIA denies the case?

Answer: In reality, that is what will happen in most cases. Because of these new regulations, and because of the violation of Constitutional Due Process rights, people will simply use the BIA as a stepping stone to get to the real appeal. Once the BIA denies the case, it can be appealed directly to a Circuit Appellate Court of the United States. These courts are right below the U.S. Supreme Court. In these appeals, there will be a three judge panel and they will give a real chance to have the case heard on the merits. Do not give up with these new regulations. Just keep fighting until you get to the Circuit Courts, and hopefully, we can restore the immigrant rights that have been lost.

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The Board of Immigration Appeals issued a decision, In re Ariadna Angelica Gonzalez, et al. (23 I & N Dec. 467, Interim Decision #3479, BIA 2002) on September 19, 2002 that seems to ease some of the restrictions on applying for cancellation of removal.

When an alien is placed into removal proceedings (previously referred to as deportation proceedings), there is a type of relief known as cancellation of removal. If the Immigration Judge grants the relief, then the alien will be granted lawful permanent residence in the United States. To qualify for this relief, one must show that he or she has been physically present in the United States for at least ten years prior to being placed into removal proceedings. Next, the alien must show they have good moral character and have not been convicted of certain crimes. Finally, the most difficult element to prove for this type of relief is to show that an immediate family member who is either a United States citizen or Lawful Permanent Resident will suffer exceptional and extremely unusual hardship if the he or she is removed from the United States.

Prior to In re Gonzalez, it appeared as though only those aliens in removal proceedings who had a United States son or daughter who suffered from some type of sever medical trauma would be granted cancellation of removal. Naturally, most people in proceedings could never meet such a high standard. This type of standard was not only restrictive, but unrealistic for most people to meet. Congress has allowed aliens without legal status in removal proceedings to apply for this type of relief. They have intended that long term residents should be given a real chance to be able to continue their lives in the United States without having their families torn apart and separated for years or for the rest of their lives.

The problem is with the term ‘exceptional and extremely unusual hardship.’ Clearly, any family who is separated by removal of one of its members from the United States will suffer hardship. However, for those who want to win the cancellation of removal cases, they must present facts showing that they will suffer exceptional and extremely unusual hardship. When this law was passed under the Immigration and Nationality Act section 240, there were no precedent decisions as to what constitutes this type of hardship. In reality, each Immigration Judge could have their own interpretation as to what type of hardship will fall under this standard. Previously, the Board of Immigration Appeals has issued very harsh decisions as to what constitutes this high standard of hardship. Subsequent to the issuance of those decisions, it has been practically impossible to ever get a grant of cancellation of removal from an Immigration Judge.

In re Gonzalez moves the pendulum back and gives the attorneys and the judges some realistic direction on what constitutes ‘exceptional and extremely unusual hardship’. In this case there was a single mother of six children and no family ties in Mexico. Four of her children were United States citizens. She has lawful permanent resident parents and five of her siblings are United States citizens.

The factors the Board of Immigration Appeals considered in assessing the hardship included the heavy financial burden imposed on her by having to support all of her family in her native country, the lack of any familial support for her children, the lack of any family in her native country, the children’s unfamiliarity with the Spanish language and the unavailability of any other means of immigrating to the United States.

In re Gonzalez makes it clear that ‘unconscionable’ hardship need not be shown. In deciding a cancellation of removal case, the age, health, and other circumstances of the relative must be considered if they are to live in a country with a lower standard of living.

The financial hardship on the alien was a determinative factor. The Board of Immigration Appeals noted that her children were not receiving any type of financial assistance from their father. Additionally, the Board of Immigration Appeals noted that should she be removed from the United States, it would be unlikely that she would be able to legally return to the United States in the foreseeable future.

The Board of Immigration Appeals stated that they must consider the ‘totality of the burden on the entire family’ that would result from the removal of the mother from the United States. Thus, a cumulative analysis must be made as to all of the factors relating to the hardship.

Prior to this decision, getting the Immigration Judge to grant a cancellation of removal was rare. Now, aliens in removal proceedings can present a myriad of evidence to meet the high standard of hardship that their families will suffer if they are removed from the United States.

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Question: I have heard that the government is trying to deport people to their countries even if the foreign government does not want them back. Is this true?

Answer: Yes. However, in a recent 9^th Circuit decision, Ali vs. Ashcroft, 2003 U.S. App. LEXIS 19213 (9^th Cir. 2003), this issue was addressed.

In this case, the man was from Somalia and he had a final order of removal against him. The Bureau of Customs and Immigration Enforcement (BICE) had plans to deport this person (Ali) to Somalia. He filed a Writ of Habeas Corpus in the District Court to prevent BICE from deporting him to Somalia (a country without a functioning government.)

First, Ali was not merely contesting the removal order. Instead, he was primarily arguing that BICE could not remove an alien to a country without a functioning government. Here, the Ninth Circuit held that administrative exhaustion is not required where they are not ruling on the merits of the removal, but rather, a practice of constitutional or statutory violations.

Next, this case held that if it would be futile to exhaust the administrative remedies, and the issue revolves around a legal question, that the appellant is not required to exhaust his administrative remedies.

This is a very critical ruling. Primarily, the reality of being removed from the United States is weighed against exhausting administrative remedies. What usually happens is that when a person is in imminent danger of being deported or removed from the United States, a Motion for a Stay of that Deportation can be filed with the Board of Immigration Appeals. In the vast majority of the cases, they will deny the Stay of Deportation, or simply not rule on the matter prior to the person being deported.

BICE will always try to make these jurisdictional arguments based upon the fact that the alien has failed to exhaust their administrative remedies. However, if the alien did not file the necessary Habeas Corpus to get a real chance at getting the stay of deportation issued, he would be deported and the issue would be moot. In this case, the alien was from Somalia and he faced a real likelihood of being killed or tortured by being returned to a country whereby there is no organized government. Thus, not only would it have been futile to try to get the stay of deportation issued by the BIA, it could have resulted in his death.

Thus, the Ninth Circuit ruled that judicial review was not barred in this case because of a lack of exhaustion of administrative remedies.

In Ali, supra, the Ninth Circuit goes through an analysis of how the government determines which country a person will be deported. The Immigration and Nationality Act §1231 deals with the procedure that must be used in order to designate the country of deportation. It essentially states that a country which the alien designates (or which the government designates if the alien is unwilling to do so) will be the country of removal if the government of that country gives their approval to accept the alien within thirty days. If the foreign government does not give their approval within 30 days, then the subsequent provisions of the statute must be followed to determine which will be the country of removal.

The subsequent provisions also make clear that it is necessary to have the foreign government’s approval in order to deport and remove the alien to that country.

Failing the first two sections, the government must look to a third section to determine the country of removal. In this third section, there is a litany of different provisions that are stated as to where will be the country of removal. All of the provisions do not require the foreign governments consent as do the prior provisions. Here, the BICE was arguing that the statute in the third set of provisions does not require that they have the governments consent, and therefore, they do not need any consent to deport aliens under this provision.

The Ninth Circuit adopted the reasoning of the District Court. In essence, they stated that the consent requirement of the foreign government was implicit in the third section. Otherwise, it would render the first two sections superfluous. For example, the government in the first section could deny the Attorney General permission to deport the alien to their country. Then, the Attorney General could go down to the third section to give themselves authority to deport the person without the consent of the foreign government which was specifically required in the first section. In fact, to allow the third section to stand without an implicit approval by the foreign government would make the first two sections meaningless.

Unfortunately, we are facing more situations similar to this case where the government will try to bootstrap a particular provision as giving them authority to perform an action when other provisions do not give them such authority.

Thus, this case has stood up to the fairness of aliens in this particular situation. The law has shown that BICE cannot try to deport an individual to a country who will not accept this alien and whom will torture and/or kill him upon his return.

After concluding that it was not legal to deport a person to a country where the foreign government has not given their authorization, the Ninth Circuit then addressed the issue of indefinite detention of the alien. Here, where there is no likelihood of removal in the foreseeable future, the alien must be released.

This particular case is not only a win for this particular alien, but for all aliens in his similar situation across the U.S. It is a ruling that shows that basic humanitarian considerations need to be followed.

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