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Preventing Removal through Habeas Corpus

Posted on July 23, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

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 9th Circuit decision, Ali vs. Ashcroft, 2003 U.S. App. LEXIS 19213 (9th 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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Being exiled from the U.S.

Posted on July 22, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: Many people from around the world are being persecuted, tortured, imprisoned or killed in their home countries. However, sometimes they do not win. I heard that they may not be allowed to ever get immigration benefits again. Is this true?

Answer: They flee this persecution and apply for asylum in the United States. As a side benefit of applying for asylum, people can get work-permits which sometimes are more important for these people than the actual asylum. In the past, applying for asylum would be abused by thousands of people for this very purpose.

Thus, in 1996, Congress enacted a law which essentially stated that if someone files a frivolous asylum application, they would be permanently barred from ever applying for any immigration benefit for the rest of their lives. This bar would apply if the Immigration Judge made a ruling that the asylum application was frivolous or meritless.

In a recent 9th Circuit decision, Jamal vs. Ashcroft, 2003 U.S. App. LEXIS 23239 (9th Cir. 2003), the alien first challenged the Immigration Judge’s credibility determination underlying his removal order. The Immigration Judge had made a specific ruling that the alien was not credible. The Immigration Judge identified specific inconsistencies in the alien’s testimony, his expert’s testimony, his brother’s testimony, and between the different witnesses’ testimony. Further, the Immigration Judge ruled that the inconsistencies went to the heart of the asylum application and the alien’s identity, his membership in a persecuted group, and the date he entered the United States.

The Immigration Judge then ruled that the alien knowingly filed a frivolous asylum application and ordered that the alien be removed from the United States. Thus, because of this ruling the alien was barred for life from ever coming back to the United States. The alien appealed both the removal order and the order that the asylum application was frivolous.

Such a finding carries the severe penalty of a permanent bar to immigration relief. Immigration regulations require there to be sufficient opportunity to account for discrepancies or implausibilities.

The Immigration Judge reviewed with Farah the consequences of filing a frivolous asylum application. However, Farah wanted to continue with the application. In the end, the Immigration Judge found that Farah had knowingly filed a frivolous asylum application, but never allowed Farah to explain any of the inconsistencies the Immigration Judge relied upon in making that decision.

The primary issue to be answered is whether the Immigration Judge ruled correctly on whether there was a knowingly frivolous asylum application filed. This issue is of critical importance as it bears on whether persons who might have a colorable asylum claim will step forward and apply. If they feel that they will be adjudged to have filed a knowingly frivolous asylum application, a chilling effect for asylum seekers will occur. They will be afraid to file these applications. Instead of the United States attempting to adjudicate an asylum claims, the United States will be sending out a message to try to exclude valid claims.

The Immigration Judge concluded that Farah’s asylum application was so inconsistent that it rose to the level of being knowingly frivolous under the immigration laws.

In this case, the Immigration Judge found two specific examples of fabrication that were relevant to his decision: the petitioner’s entry date and his travel history. In his decision, the IJ held that it was clear that the respondent did not enter in New York on January 24, 1999, in the manner in which he stated and that he has fabricated that portion of his claim. The Immigration Judge further stated that he has also been untruthful as to whether he was in Nairobi, Kakuma, London, England or any other place before he came to the United States.

This court stated that Farah had ample opportunities to explain the discrepancies that led to the adverse credibility finding. For example, discrepancies in his father’s name and in his clan identity. To support the finding of frivolousness, however, the Immigration Judge relied with particularity on different discrepancies between what Farah said and the extrinsic evidence. Farah was not given an adequate opportunity to address those additional discrepancies before the ruling on frivolousness was made. In sum, the evidence presented did not allow a proper opportunity for Farah to explain all discrepancies in the record. Therefore, the court overturned the decision of the Immigration Judge that the application was knowingly frivolous.

Even though the Court did not reverse the decision denying the asylum, they did reverse the permanent bar to future filings with immigration. Now, aliens with colorable asylum claims will not be afraid to present those claims to the United States.

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Will my son be sent back home?

Posted on July 21, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a lawful permanent resident and have petitioned my wife and son many years ago. Just recently I found out about the V Visa which allowed my wife and son to come to the United States and reside with me while we are waiting for the visa number to become current. However, my son is going to be 21 years old in two months. I have been told by USCIS that he will have to return home and he can no longer reside here on the V Visa. I have missed him so much that I cannot bear to be separated for years to come. Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal. Therefore, if you live in the jurisdiction of the Ninth Circuit (basically the Western United States), then you are in luck.

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday, was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act“).

As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V). Spouses and children of lawful permanent residents who have been waiting for permanent resident status for at least three years are eligible for V visas. These V visa holders are entitled to certain benefits, including employment authorization. The INS regulations implementing INA § 101(a)(15)(V) provide that V visa status “will be granted a period of admission not to exceed 2 years or the day before the alien’s 21st birthday, whichever comes first.” Upon termination of V nonimmigrant status, the individual is no longer eligible for employment authorization.

In this Ninth Circuit case, the government argued that, the court should allow the USCIS regulations to stand. The court ultimately disagreed, stating “[w]e do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”

The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21. The court found that the LIFE Act made clear that a person over the age of 21 was not eligible to receive a V visa but that the statute was silent regarding whether a person over the age of 21 who has been issued a V issue is able to continue to hold that visa. Thus, the court concluded that Congress’ intent was ambiguous.

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways. Thus, applying the presumption that “when a statute designates certain . . . manners of operation, all omissions should be understood as exclusions,” the court concluded that “[s]ince Congress explicitly enumerated circumstances by which V Visa benefits are terminated, the presumption is that Congress purposely excluded all other possible means, such as aging-out.” The court further found that its conclusion was supported by: (1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i)); (2) “the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion;” (3) and the rule of lenity (in immigration cases, “doubts are to be resolved in favor of the alien.”).

Thus, the court invalidated the age-out provisions of the V Visa. Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age. This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.

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Is Immigration suffering or being helped by DHS?

Posted on July 21, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: Last year, the Department of Homeland Security came into being. I have many friends who are having lots of problems with immigration. Is the DHS helping or hurting these people?

Answer: March 1, 2004 marks the one-year anniversary of the Department of Homeland Security’s (DHS’s) assumption of U.S. immigration functions. There are several problems that exist within the agency. 1) Inadequate Coordination: Because enforcement and adjudications are two sides of the same coin it would be to the benefit of all if there were close coordination from DHS and between the DHS and other federal agencies including the State Department, Department of Justice, FBI, and CIA. However, this has yet to be realized.

Next, inadequate funding long has characterized adjudications. Especially in light of this historical underfunding, it is imperative that the US Citizenship and Immigration Services (USCIS) be accorded adequate resources to do its job. Direct congressional appropriations are necessary in order to ensure that the USCIS lets the appropriate people into the country and bars those who mean to do us harm, and adequately delivers services.

Question: I also have many friends over the last year who have received answers to their applications. For one reason or another, it always boils down to a “no”.

Answer: This is a definite problem. The DHS must change the culture of “No”. There have been widespread reports of unfair, arbitrary and inconsistent adjudications. Reinforcing this view are the increased numbers of unnecessary requests for additional information that contribute to the dramatic slowdown in the processing of petitions and applications. While our immigration system has long been characterized by backlogs, delays, and inadequate funding, current backlogs and delays have reached historical levels. Many organizations and individuals are reporting severe delays in processing that have negatively impacted American business and family members. USCIS needs to efficiently and fairly adjudicate petitions and applications.

Question: I have read a report that the number of B2 Visitor Visas has been denied and cut drastically over the last couple of years. Is this really what DHS wants?

Answer: The Importance of Immigration at our Ports of Entry must be recognized. Our national and economic security depends on the efficient flow of people and goods at these ports. Unfortunately, current reports suggests that the Custom and Border Protection Bureau (CBP) is giving inadequate attention to immigration and is initiating polices that do not reflect the intricacy of the subject and its importance to our country.

Question: My family has appointments at the U.S. Consulate, but there have been numerous delays. Is this also a problem?

Answer: With the Department of Homeland Security’s authority to establish and administer rules governing the granting of visas, it is vitally important that visas be granted to the people who come to build America and denied to those who mean to do us harm. We must balance our national security and economic security needs by recognizing that the U.S. is tied to the rest of the world economically, socially, and politically. However, severe delays at the consulates continue to hamper the visa issuance process, with serious consequences for businesses, families, schools and others in the United States. The gridlock that has paralyzed the visa issuance process in the past two years must be resolved – the agencies charged with clearing security checks must be motivated to give these operations the priority that they deserve.
Thus, there are a great many items that must be worked upon. It is a constant balancing of safety verses allowing immigrants into the U.S. Hopefully, in the near future, there will be a comprehensive policy to deny visas to persons who would be a danger to our society, but to allow those into the U.S. for legitimate means.

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Why should I become a U.S. Citizen?

Posted on July 14, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been a Lawful Permanent Resident for many years. Many of my friends have become U.S. Citizens (USC) as have many of my family members. However, I just do not know why I should become a U.S. Citizen. Can you advise me?

Answer: The Constitution gives many rights to citizens and non-citizens living in the United States. However, there are some rights the Constitution gives only to citizens, like the right to vote. When you are naturalized, you will be given the right to vote. Having a U.S. passport is another benefit of citizenship. A U.S. passport allows citizens the freedom to travel. In addition, citizens receive U.S. Government protection and assistance when abroad. Additionally, while no one should go and commit crimes, persons whom are only Lawful Permanent Residents can be put into deportation proceedings and deported. This is not true of U.S. Citizens. In fact, once you become a U.S. Citizen, it is incredibly difficult to take away your citizenship. Regarding the crimes, many times people will just be in the wrong place at the wrong time. Because of that they will just take a plea bargain. Of course, if they only have their Green Cards, they could be put into deportation for the same reasons as stated above. To be a U.S. Citizen, is simply a much safer way of living here.

Question: Are there increased responsibilities if I become a U.S. Citizen?

Answer: The Oath of Allegiance includes several promises you must make when you become a U.S. citizen, including promises to: give up prior allegiances to other Countries; support and defend the Constitution and the laws of the United States; swear allegiance to the United States; and serve the country when required. Citizens have many responsibilities other than the ones mentioned in the oath. Citizens have a responsibility to participate in the political process by registering and voting in elections. Serving on a jury is another responsibility of citizenship. Finally, America becomes stronger when all its citizens respect the different opinions, cultures, ethnic groups, and religions found in this country. Tolerance for differences is also a responsibility of citizenship. When you decide to become a U.S. citizen, you should be willing to fulfill the responsibilities of citizenship.

You will have to honor and respect the freedoms and opportunities citizenship gives you. Once you become an American Citizen, and participate in all that this country has to offer, you will truly become an American.

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Will I be locked up forever?

Posted on July 7, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I am writing from the immigration detention facility. I have had my Green Card for many years, but committed a crime many years ago. After trying to become a U.S. Citizen, they not only denied my application, but put me in detention and deportation. I have heard that there is no way I can be bonded out during the proceedings. Is this true?

Answer: Partially. The United States Supreme Court recently decided a case known as the Kim case. The Court held that the government may detain classes of lawful permanent residents without conducting individualized bond hearings to determine whether they pose a flight risk or danger to the community. The INA lists broad categories of noncitizens that are subject to mandatory detention based on their removability under specific criminal provisions.

After the Court announced its decision, the Bureau of Immigration and Customs Enforcement (BICE) issued a memorandum saying that all persons subject to Kim would receive letters within six months asking them to report for an interview. BICE said it would re-detain individuals who had previously been released after a bond hearing, but who now fall within the mandatory detention provisions.

Question: Is there anyway around the Kim case?

Answer: There may be. The first step in analyzing any mandatory detention case is to determine whether the Kim case even applies. Only individuals who were released from criminal custody after October 8, 1998 are subject to mandatory detention. Thus, if you were released from custody before that time, you are not subject to the mandatory detention.

Also, it can be argued that only individuals who are taken into custody immediately upon their release from criminal incarceration fall within the confines of this case.

Assuming this cannot be argued, a “Joseph hearing” needs to be conducted. A Green Card holder is not “properly included” within a mandatory detention category if the “Service is substantially unlikely to establish at the merits hearing, or on appeal, the charges that would otherwise subject the alien to mandatory detention.” Individuals who prevail at the Joseph hearing are entitled to have a bond hearing.

For example, if the person is charged with removability based on convictions for two crimes involving moral turpitude, consider whether there are possible challenges to (1) the existence of the convictions, and (2) the classification of the crimes as crimes involving moral turpitude. In Matter of Joseph, the BIA concluded that it was substantially unlikely that INS would succeed because Joseph’s conviction was not correctly classified as an aggravated felony. Although Matter of Joseph addressed only the situation where the conviction was wrongly classified as a crime that would trigger mandatory detention, in thinking about whether there is a conviction, take account of the availability of post-conviction relief.

Question: Assuming I cannot prevail at the Joseph Hearing, is there anything else I can do?

Answer: You can bring actions in the U.S. Federal District Courts challenging the mandatory detention. Such factors to bring the attention of the Judge will be the length of the detention and removal from the United States is unlikely. Also, the Supreme Court’s decision was premised on the finding that Kim conceded removability. Individuals intending to challenge removability should state clearly this intention at both the immigration court and in any habeas corpus actions. Cases where the person is challenging deportability may be distinguished from Kim on that basis.

At this point, it will be difficult, but we must continue to argue and fight for the rights of people who are subject to mandatory detention.

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What does the REAL ID Act mean?

Posted on June 25, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard so much about the REAL ID Act, but do not really understand what it is. Can you explain?

Answer: The REAL ID Act made two changes to INA § 242(a)(2)(B), an INA subsection added by IIRIRA that precludes federal court jurisdiction over certain discretionary decisions. One of these changes purports to expand § 242(a)(2)(B) to non-removal cases.

Courts have only recently begun to interpret the REAL ID Act.

Question: What is INA § 242(a)(2)(B)?

Answer: INA § 242(a)(2)(B), entitled “Denials of Discretionary Relief,” restricts when federal courts have jurisdiction over certain types of discretionary decisions and action by the government in immigration cases.

INA § 242(a)(2)(B) includes two subparts. The first limits federal court jurisdiction over a “judgment regarding the granting of relief under section criminal and fraud waivers, cancellation of removal or adjustment proceedings. The second subpart restricts federal court jurisdiction over “any other decision or action … the authority for which is specified under this title [Title II] to be in the discretion or the Attorney General or the Secretary of Homeland Security.” Asylum decisions are specifically exempted from this bar on jurisdiction.

For § 242(a)(2)(B) to apply, a case must fall within one of these two subsections. Each subpart has been interpreted narrowly, in accord with the specific language chosen by Congress.

The REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits in non-removal cases?

Answer: No, these changes do not eliminate all jurisdictions over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, a practitioner may carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: While there are several issues in such an analysis, the first issue will be looked at in this article. INA § 242(a)(2)(B) does not apply to every immigration-related case. Thus, the first step is to determine if the case is entirely outside the reach of § 242(a)(2)(B). There are at least four general categories of cases that arguably fall outside the reach of this section.

A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. Neither this section nor the REAL ID Act stripped federal courts of jurisdiction where the government has a nondiscretionary duty to act. In mandamus cases in particular, the existence of a mandatory, non-discretionary duty on the part of the government is an essential element of the claim. Thus, mandamus actions by definition generally should not fall within the restrictions of INA § 242(a)(2)(B).

B. INA § 242(a)(2)(B) does not apply to asylum decisions. Asylum is not one of the forms of discretionary relief specifically mentioned in § 242(a)(2)(B)(i), and thus this subsection does not apply to asylum cases. Additionally, asylum is specifically exempted from § 242(a)(2)(B)(ii), and thus this subsection also does not apply to asylum cases. Consequently, § 242(a)(2)(B) should never be an issue with respect to federal court jurisdiction over asylum cases, even if the challenged agency action is a discretionary one.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions. Additionally, § 242(a)(2)(B)(ii) states that it applies to agency decisions or action, “the authority for which is specified under this title” to be discretionary. Consequently, INA § 242(a)(2)(B) should never be an issue in federal court jurisdiction over a naturalization decision, even one involving discretion.

D. INA § 242(a)(2) should not apply to S, T and U visas. While generally, this provision contains definitions that do not authorize discretion, there are a few exceptions. For example, the definition of the non-immigrant “T” visa category includes as an eligibility requirement that the Attorney General determine if the individual “would suffer extreme hardship involving unusual and severe harm upon removal.” The determination of extreme hardship has been held to be a discretionary determination. Arguably, however, the exercise of the Attorney General’s discretion with respect to a T visa would not fall within the bar to jurisdiction in § 242(a)(2)(B)(ii) because the statutory authority for this discretion is found in Title I, not Title II. The definitions of the “S” and “U” visa categories contain similar grants of discretion that fall outside the scope of § 242(a)(2)(B).

Thus, the REAL ID Act did not completely eliminate federal court jurisdiction.

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Can I get review of my denied case under the REAL ID Act?

Posted on June 24, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have had my case denied in Immigration Court and I have heard about the REAL ID act and am very confused if I can get some type of judicial review of my case. Can you clarify?

Answer: The REAL ID Act did not change the language of either subpart (i) or (ii) of the statute giving/denying review. Rather, the Act made two changes to the paragraph preceding these subparts. First, it specified that the phrase “notwithstanding any other provision of law” applied to “statutory and nonstatutory” law and included the habeas corpus statute, the mandamus statute, and the All Writs Act. Second, the REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all – courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits?

Answer: No, these changes do not eliminate all jurisdiction over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, it is necessary to carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: There are several items that one must look at to determine if this section applies. 1. Does the issue/case fall completely outside the scope of INA § 242(a)(2)(B)? A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. B. INA § 242(a)(2)(B) does not apply to asylum decisions.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions and D. INA § 242(a)(2) should not apply to S, T and U visas.

Question: What if the case is one that appears to have fallen under the provision not permitting discretionary review?

Answer: Again, it is necessary to do an analysis. First, has there been an actual exercise of discretion? Even where there has been an actual exercise of discretion, is this exercise of discretion the issue in the case? Is the challenged action or decision discretionary? Is the decision or action specified by statute to be discretionary? Is the grant of discretion one of pure discretion unguided by legal principles? (9th Circuit cases.)

Thus, while the REAL ID Act may seem to completely limit judicial review of cases, if you fight the matter and analyze the case, there are different ways to still get judicial review of your case.

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Are H-1B’s and H-2B’s used up yet?

Posted on June 12, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that H-1B’s and H-2B’s are going quickly. Are they used up yet?

Answer: The DHS recently published numbers of H-1B’s and H-2B’s currently used. The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000. It appears that for non advanced degree holders, the cap of about 58,000 has approved over 22,000 and has about 30,000 pending. This means there are only about 5,000 left. You should get your H-1B in right away.

However, if you have an advanced degree, there was an extra 20,000 H-1B’s allocated. For the rest of the 2005 fiscal year, there have been about 10,300 that have been approved. Thus, there is still a reasonable amount left. For the fiscal year of 2006, there have already been about 8,000 used up.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Of the 35,000 left until October 1, 2005, about 16,000 have been used. There have only been about 300 used up for the first half of 2006. Therefore, there seems to be quite of bit of H-2B’s left.

Question: Do you think there is any problem with filing an H-1B or an H-2B at this time?

Answer: You never know how soon all of the visas will be used up. There are people across the U.S. who are aware that there is a limit on these visas and are trying to get their visas in right away. Therefore, you should have your visa petition prepared right away to ensure you get in this years allotment. All kinds of status problems could occur if the allotment is used up and your stay in the U.S. expires afterwards.

Question: Should we file the H-1B and/or H-2B with premium processing?

Answer: Definitely. You never know if your application will be filed one after the last one. Therefore, to ensure your chances, pay the $1,000 premium processing fee and have peace of mind.

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Door is Closed for Professionals

Posted on May 6, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I came here on a visitor visa 3 months ago and now I would like to apply for the H-1B. What must I do?

Answer: Unfortunately, you are too late for this years allotment. As of October 1, 2004, all H-1B’s have been allotted for the next fiscal year until October 1, 2005. Thus, as unfair as it seems, the day the new year’s allotment was opened, it was shut off and closed.

The H-1B Cap prohibits U.S. Employers from hiring global talent On October 1, 2004. USCIS officials announced that the H-1B cap on visas for highly educated foreign professionals had been reached. Unless Congress takes action before the end of the 108th session, employers will be barred from hiring new H-1B foreign professionals for an entire year. Essential action would include exempting from the H-1B numerical cap graduates from U.S. universities who have earned a Master’s degree or higher. Such a rational solution to this crisis would help ensure a workable H-1B program that would give U.S. employers access to the talent they need and help retain jobs in America. A select number of H-1B professionals are graduates from U.S. top universities’ Master’s and PhD programs. In the graduate-level math and sciences programs, foreign nationals represent roughly half of all graduates. Prohibiting access to these world-class minds raises troubling issues. Not only would U.S. employers miss out on American-educated talent, but we would be handing this talent to our competitors abroad. Indeed, foreign countries are updating their immigration policies to attract this highly educated talent, making the competition to retain the best and the brightest that much more difficult for the United States to win. The exhaustion of this fiscal year’s visa numbers also has made it more difficult for Americans to receive needed services. For instance, it is not commonly known that H-1B professionals serve as doctors, teachers and researchers, and work to develop products and services that improve the lives of Americans. H-1B professionals include psychologists and special education instructors who work with the mentally challenged, engineers who design tunnels and subway corridors that can withstand terrorist attacks, and biomedical researchers central to the fight against cancer, AIDS and other diseases. Without access to these highly educated foreign professionals, America will suffer. Not only will our ability to provide benefits to our own citizens be diminished, but the glow of American innovation that results from having access from the world’s brightest minds may be forever dimmed.

Question: Are there any other options?

Answer: There are other types of nonimmigrant visas such as the O, E, L, and other H’s. You should definitely look into those other options and not go out of status.

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