Friday, April 30, 2010

Adjustment of Status to LPR Constitutes Admission for Purposes of Continuous Residence Requirement of INA § 212(h) Matter of KOLJENOVIC

An alien who entered the U.S. without inspection and later obtained lawful permanent resident (LPR) status through adjustment of status has “previously been admitted to the U.S. as an alien lawfully admitted for permanent residence” and must therefore satisfy the seven-year continuous-residence requirement of INA § 212(h) [8 USCA § 1182(h)] (2006) to be eligible for a waiver of inadmissibility, the Board of Immigration Appeals (BIA or Board) has concluded.
Matter of Koljenovic, 25 I. & N. Dec. 219 (B.I.A. Apr. 21, 2010).

The respondent, a native and citizen of Montenegro, originally entered the U.S. without inspection. He subsequently adjusted his status to that of an LPR in September 2001. In December 2004, the respondent was convicted of second-degree organized fraud under Fla. Stat. Ann. § 817.034(4)(a)(2). He was placed in removal proceedings when, in August 2006, he sought admission to the U.S. as a returning LPR. During removal proceedings, the respondent admitted that he was removable as a result of his conviction but sought a waiver under INA § 212(h). The immigration judge (IJ) denied the request, finding that the respondent lacked the requisite seven years of lawful continuous residence since he acquired his LPR status. The respondent appealed the IJ's decision, asserting that the seven-year requirement does not apply to him because he was not admitted as an LPR when he adjusted his status.

The Board, began by setting out the relevant statutory provision of INA § 212(h)(2) (2006), which states that no waiver may be granted: "in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

The Board noted that the term “admission” as defined in INA § 101(a)(13)(A) [8 USCA § 1101(a)(13)(A)] (2006)--“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”--does not have that same meaning in the context of INA § 212. For purposes of INA § 212, “admitted ... as an alien lawfully admitted for permanent residence” could mean “either ... inspection and authorization to enter at the border or ... adjustment of status if the alien is already in the United States.”

The Board further opined that it has “consistently construed an adjustment of status as an ‘admission.”’ It argued that holding otherwise would in fact mean that “aliens who entered without inspection and later adjusted their status would never have been ‘admitted’ for permanent residence and would therefore be ineligible for relief from removal that includes an ‘admission’ requirement” and such a finding would be inconsistent with the INA.

As further evidence that adjustment to LPR status equates with an alien having been admitted to the U.S., the Board noted that INA § 245(b) [8 USCA § 1255(b)] requires the Attorney General to “‘record the alien's lawful admission for permanent residence as of the date’ that adjustment of status was granted.”

Applying these prior holdings to the present case, the Board stated that the respondent's only admission to the U.S. occurred in 2001 when he was granted his LPR status. Finding that being granted LPR status was not an admission would in fact lead to absurd results under the legislative scheme, the Board stated.

The Board cited to legislative history in support of its conclusion. The Board noted that the language at issue in this case was added to INA § 212(h) by § 348 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The Conference Report accompanying the IIRIRA states, “The managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h).” The Board asserted that INA § 240A(a)(2) [8 USCA § 1229b(a)(2)] (2006) establishes a continuous residence requirement of seven years for cancellation of removal for LPRs and concluded that the Conference Report's reference to INA § 240A reflects “Congress' intent to create congruity in the residence requirements for these two forms of relief, both of which are available to lawful permanent residents.” Further, the Board held that not treating an alien's adjustment of status as an admission that invokes the seven-year residence requirement would frustrate the legislative purpose because an alien who obtained lawful permanent residence through adjustment of status but who has not resided continuously in the U.S. for seven years and who is removable for a criminal conviction would be ineligible for cancellation of removal under INA § 240A but would be eligible for a waiver under § 212(h).

The Board concluded the opinion by focusing on the fact that time in status has historically been a factor in determining eligibility for various forms of relief. It noted that the important factor in this case is not so much how the respondent achieved admission to the U.S. but, rather, how much time has elapsed since he was admitted. The Board suggested that holding that the seven-year continuous-residence requirement did not apply to individuals like the respondent who obtained LPR status while in the U.S. would in fact allow most LPRs to “forever avoid the effect of the aggravated felony bar” in INA § 212(h), a result that would most likely be contrary to congressional intent.

The Board found that the seven-year continuous-residence requirement of INA § 212(h) applies to the respondent because his adjustment of status constitutes an admission and is the only possible date of admission given that he entered without inspection. Because the respondent does not have the requisite seven years of continuous residence, the Board found that he was ineligible for a § 212(h) waiver and dismissed the appeal.

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Sunday, April 25, 2010

ACLU of Arizona Section By Section Analysis of SB 1070 “Immigration; Law Enforcement; Safe Neighborhoods

Summary of major provisions: This bill unconstitutionally allows the state of Arizona to regulate immigration by establishing a separate state offense for any person to violate provisions of the federal immigration law regarding registration and carrying registration documents. It gives local police officers authority to investigate, detain and arrest people for perceived immigration violations without the benefit of proper training, exacerbating the problem of racial profiling and raising concerns about the prolonged detention of citizens and legal residents.

Section 2 Would create a new section A.R.S. § 11-1051 that:
(A)    Prohibits cities, towns, and counties from having any policy in place limiting the investigation of violations of federal enforcement laws to less than the full extent permitted by federal law.
This appears to prohibit localities from having policies aimed at increasing trust within immigrant communities, such as not questioning victims and witnesses of crime about their immigration status. It also severely ties the hands of local governments by not permitting them to exercise their own judgment about the allocation of law enforcement resources because it requires police agencies to treat administrative violations of the immigration law on the same level as serious felonies. We are aware of no other law—except funding incentives—that attempt to dictate law enforcement priorities in this way.
(B)    Requires police officers to make a reasonable attempt to determine the immigration status of a person whenever there is reasonable suspicion that the person is person is unlawfully present and verify that status with the federal government, except to the extent that it would hinder an ongoing investigation.
(C)    Provides for the transfer of any noncitizen who is unlawfully present to federal custody upon discharge from prison or assessment of a fine after conviction of a state offense.

This law is unnecessary as to any person who is booked into a jail or serves time in prison because federal law already provides for a process by which individuals are checked against law enforcement databases and immigration “holds” or detainers can be placed on persons who are identified as non- U.S. citizens. A detainer ensures that the person will be transferred to federal custody instead of being released.
(D)    Provides authority for state and local law enforcement to transport noncitizens in their custody suspected of being unlawfully present to federal authorities, even outside the jurisdiction of the local agency.
This law is unnecessary as to any person who the federal government has reason to believe is in the country illegally because federal law already provides for a process by which those persons can be transported to federal custody. Local agencies can also contract with federal authorities to be reimbursed the cost of detaining and transporting such persons. The only reason why this provision seems to have been included is to permit local law enforcement to transport undocumented immigrants to some point of transfer other than the local Immigration and Customs Enforcement (ICE) office— i.e., ICE is, for whatever reason, not interested in taking custody of the person.
(E)    Gives police officers authority to conduct warrantless arrests of persons for whom the officer has probable cause to believe have committed any public offense that makes those persons deportable.
To the extent that provision attempts to create state arrest authority for administrative violations of federal immigration law, it is likely to be deemed invalid by the courts because states cannot create such arrest authority where it does not exist under federal law. As the Ninth Circuit held in a case from Arizona called Gonzales v. City of Peoria, while Arizona could authorize Peoria to enforce the criminal provisions of the immigration law, “we firmly emphasized that this authorization is limited to criminal violations.” The court took issue with the Peoria Police Department policy because it obscured the difference between civil administrative violations and criminal violations of the immigration law, and, as the court stressed, the lack of documentation or an admission of illegal presence “does not, without more, provide probable cause of [any] criminal violation” of the immigration law. Officers not trained in federal immigration law who attempt to exercise this arrest authority would be subject to legal liability for violations of the Fourth Amendment. In addition, an immigration judge could invalidate the arrest of immigrants by Arizona police officers pursuant to this provision because even federal immigration agents do not have the power to conduct warrantless arrests away from the border unless the agent can articulate specific reasons to believe the person was likely to escape before a warrant could be obtained. 8 U.S.C. § 1357(a)(2).
(F)    Establishes that, except as provided in federal law, state and local government officials cannot be prohibited from maintaining information about the immigration status of individuals or communicating that information to any other governmental entity, including the federal government, in the course of 1) verifying eligibility for public benefits, 2) verifying claims of residence or domicile, 3) verifying the identity of any person detained, or 4) determining if the person is compliance with federal alien registration laws.
This provision is unnecessary with respect to any legitimate attempt to communicate with federal authorities for the purpose of enforcing the federal immigration laws. 8 U.S.C. § 1373(a) and (b) already provide that such communications and the maintenance of information about immigration status cannot be restricted. However, the bill seems to direct government officials to communicate and maintain such information even in contexts where doing so might constitute an unwarranted invasion of privacy and discourage lawful participation in public benefits programs and services intended for an entire community. In this respect, the provision is likely a nullity, as it would be in conflict with federal law.
(G)    Creates a private right of action for any person to sue a city, town, or county for any violation of subsection (A) and establishes civil penalties for the city, town, or county.
This subjects local governments to unreasonable and potentially frivolous litigation by private citizens with an anti-immigrant agenda. Even if a municipality is vindicated in court, it will still have to incur the costs of defense.
(H)    Directs that civil penalties assessed against cities, towns, or counties shall be applied towards a DPS Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.
(I)    Indemnifies police officers against costs and attorneys’ fees incurred in connection with any litigation brought by citizens and residents who were wrongfully detained, questioned, arrested, or transported, unless the officer was acting in bad faith.
(J)    Declares that the above provisions shall be implemented in a manner consistent with federal immigration laws and civil rights protections.
It is unclear what this provision could mean in practice, since several of the provisions of the bill are facially inconsistent with federal statutes, regulations, and the constitutions of the United States and Arizona.
Section 3
Would create a new section A.R.S. § 13-1509 that establishes a separate state offense for any person to violate provisions of the federal immigration law regarding registration and carrying registration documents (8 U.S.C. §§ 1304(e), 1306(a)). The first offense would be a class 1 misdemeanor, punishable by up to six months of jail time and an additional $500 fine, as well as jail costs, with the assessments to be applied towards the GIITEM Fund. The second offense would be a class 4 felony and an additional $1,000 fine and jail costs. Persons who have accepted voluntary removal or who had been deported in the past 5 years would be subject to a class 4 felony charge upon their first arrest under this Section. A person found in possession of drugs or weapons would face a class 3 felony charge upon their first arrest.
This provision is a back door attempt to create the state arrest authority for immigration violations described above, without any training or supervision by federal authorities. This attempt will likely be invalidated by the courts because it violates the Supremacy Clause of the U.S. Constitution. The Constitution grants the federal government exclusive power to regulate our borders and, with very few exceptions, states are not free to create their own laws regulating immigration.
Section 4
Adds a provision to the state human smuggling statute at A.R.S. § 13-2319 clarifying that a police officer may stop any car if there is reasonable suspicion to believe the driver is committing a civil traffic violation and the human smuggling law.
This law is unnecessary to the extent that police officers already have the authority to briefly detain the occupants of a car in order to investigate a traffic violation or possible criminal activity. Officers may not detain anyone for longer than it takes to issue a traffic citation or dispel their suspicions of criminal activity.
Section 5
Would add a new section, A.R.S. § 13-2928, that makes it a class 1 misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver is impeding the normal flow of traffic. It also makes it a misdemeanor for a worker to get into a car if it is impeding traffic. Finally, this Section would criminalize the solicitation of work (by a gesture or nod) by undocumented immigrants in any public place.
In order to be subject to the first or second parts of this Section, the vehicle in question has to be obstructing traffic. This provision is adds no value insofar as there are already laws on the books that address traffic hazards. It is also likely to be found unconstitutional by the courts because the third part singles out the speech of immigrant day laborers for criminalization. The solicitation of work has been found by courts across the county to be protected speech under the First Amendment.
Would add a new section, A.R.S. § 13-2929, that makes unlawful for any person who is “in violation of a criminal offense” to transport, move, conceal, harbor, shield from detection, or attempt to do any of the above, any undocumented immigrant if the person knows or recklessly disregards the fact that the immigrant has entered or remained in the United States illegally. It also makes it a state crime to encourage or induce any immigrant to come, enter, or reside in the country illegally. A person who violates this law would be subject to a class 1 misdemeanor and a fine of at least $1,000, with additional penalties where the offense involves ten or more immigrants. Any means of transportation used in connection with the crime will be impounded.
This provision is unnecessary because the exact same actions (transporting, moving, concealing, harboring, and shielding undocumented immigrants) are already prohibited under federal law where the person commits those acts with the intent to further the immigrant’s violation of the law. 8 U.S.C. § 1324(a)(1)(a). Furthermore, Arizona peace officers have explicit authority to arrest anyone who violates the federal harboring law, 8 U.S.C. § 1324(c), and vehicles used to commit the offense may be seized. 8 U.S.C. § 1324(b). Courts have not permitted prosecutions under the federal statute where a person offers a ride or shelter to another person out of humanitarian concern rather than with the intent to further the violation, such as for a profit motive.    There is also a specific provision in the federal statute exempting churches who provide room and board to members of their congregation serving as ministers or missionaries. To the extent that the state law is applied differently than the federal law, it could be invalidated as violating the Supremacy Clause of the U.S. Constitution. The state offense also adds a requirement that the person already be violating some other criminal law in order to be found guilty.
Section 6
Amends Arizona’s state law on warrantless arrests, A.R.S. § 13-3883 to include the arrest of persons who have committed any public offense that makes them deportable.
Sections 7 and 8
Adds a new section to the state employer sanctions law, A.R.S. § 23-212, that establishes an affirmative defense to a violation of the law if they were entrapped by law enforcement. To assert the defense, an employer must prove—by a preponderance of the evidence—that the idea of committing the violation started with the undercover officer, the officer urged or induced the employer to commit the violation, and the employer was not predisposed to commit the violation.

Section 9
Adds a new section to the state law on verification of employment eligibility, A.R.S. § 23-214, that requires employers to keep records of their verification of eligibility for the duration of the worker’s employment with the company or at least three years, whichever is longer.
Section 10
Adds a new section to the state law governing impoundment of vehicles, A.R.S. § 28-3511, mandating the impoundment of any vehicle used to transport, move, conceal, harbor, or shield an undocumented immigrant.
Section 11
Establishes the purposes and process for GIITEM Fund appropriations.
Section 12
States that the remaining provisions of the bill are severable and will remain in effect even if certain portions are held to be invalid.

ACLU of Arizon
P.O. Box 17148


Wednesday, April 21, 2010

Cancellation of Removal/Battered-Spouse Provision-7th Cir. 2010

Benaouicha v. Holder (Hamilton)
Oral Argument | Full Text

Bd. did not err in affirming IJ's order denying alien's request for cancellation of removal based on alien's allegation that he was battered spouse as contemplated under 8 USC section 1229b(b)(2)(A). Ct. rejected alien's contention that IJ failed to give him opportunity to establish that he was person of good moral character so as to potentially qualify for said cancellation since alien conceded that he was deportable under section 1227(a)(2)(A)(i) for having been convicted of crime of moral turpitude.

In Benaouicha v. Holder, 2010 WL 1292718 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Algeria who sought to defend his removal proceeding by advancing a claim that he qualified for cancellation of removal as a “battered spouse” pursuant to INA § 240A(b)(2) [8 USCA § 1229b(b)(2)]. The court agreed with the determination by the BIA, which upheld the IJ's order of removal, that the petitioner was statutorily ineligible for cancellation because he had been convicted of a crime involving moral turpitude (CIMT) so that it was not necessary to consider the other requirement, to wit: good moral character.

In September 2000, the petitioner was admitted to the U.S. to attend an airline training academy, but he never enrolled in the school. In 2003, he was convicted of a federal offense under 18 USCA § 1001(a)(2) for falsely applying for a social security card and served a six-month sentence. Upon release from federal custody, DHS commenced removal proceedings against him, alleging removability under INA § 237(a)(1)(C) [8 USCA § 1227(a)(1)(C)] for failing to comply with the conditions of his nonimmigrant status and under INA § 237(a)(1)(A) [8 USCA § 1227(a)(1)(A)] for being inadmissible at the time of entry. DHS subsequently added an additional charge under INA § 237(a)(2)(A)(i) [8 USCA § 1227(a)(2)(A)(i)] for having a conviction for a CIMT committed within five years of admission and for which a sentence of one year or longer may be imposed. Before the IJ, the petitioner conceded that he was removable on all three charges; however, as relief from removal, he sought adjustment of status to lawful permanent resident based on his marriage to a U.S. citizen. In January 2005, while the removal proceedings were pending, he pled guilty to a battery offense under Ind. Code § 35-42-2-1, and received a one-year suspended sentence and one year of probation. The court noted that the victim of the battery was the petitioner's wife. In February 2006, the petitioner requested a continuance of his immigration court hearing because his marriage had dissolved and he had filed an I-360 petition for classification as a battered or abused spouse of a U.S. citizen. The IJ allowed for several continuances while the I-360 petition was under review, but the petition was ultimately denied by USCIS' Vermont Service Center. Despite a pending appeal to the BIA respecting the I-360, the IJ denied a further continuance, ruled that the petitioner was ineligible for cancellation of removal, and ordered him removed. After the BIA upheld this result, the petitioner appealed to the Circuit Court, arguing, inter alia, that the BIA erred by ordering his removal without allowing him to demonstrate that he was a person of good moral character, which is one of the requirements for the cancellation application that he had endeavored to pursue before the IJ.

The court indicated that it had jurisdiction over the legal claims presented by the petitioner pursuant to INA § 242(a)(2)(D) [8 USCA § 1252(a)(2)(D)], notwithstanding the jurisdictional bar pertaining to the granting of cancellation relief set forth at INA § 242(a)(2)(B)(i) [8 USCA § 1252(a)(2)(B)(i)]. It proceeded to paraphrase the five elements necessary for an applicant to qualify for a grant of cancellation relief under the “battered spouse” provision: (1) he or she has been subject to battery or extreme cruelty by a U.S. citizen spouse, (2) he or she has been physically present in the U.S. for not less than three years, (3) he or she has been a person of good moral character, (4) he or she is not deportable under §§ 237(a)(1)(G), (a)(2) or (a)(4) and has not been convicted of an aggravated felony, and (5) his removal would result in extreme hardship to him or her or his or her child or parent. The court emphasized that the petitioner conceded that he was deportable under INA § 237(a)(2)(A) for having been convicted of a CIMT, thus rendering him ineligible under the fourth prong, as outlined above. The court thus concluded that, even if he could have convinced the government that he satisfied the good-moral-character requirement, as was argued in his brief before the court, the petitioner still remained ineligible for cancellation.

The court also clarified that, to the extent that the petitioner was attempting to appeal USCIS' denial of his I-360 visa petition or was asking the court to remedy the apparent failure of the Vermont Service Center to tender his appeal to the BIA, the court could not address those matters for which it lacked jurisdiction. It pointed out that there was no final administrative decision regarding this “visa application” and that it had no effect on the separate removal order, which was reviewed under INA § 242.

USCIS Reminds Haitians to Register for TPS by July 20, 2010

U.S. Citizenship and Immigration Services (USCIS) has issued a reminder to Haitian nationals who are eligible for temporary protected status (TPS) to file a registration application for TPS by July 20, 2010. The Department of Homeland Security (DHS) Secretary Janet Napolitano announced an 18-month designation of TPS for Haiti commencing on January 21, 2010. [FN1] Haitian nationals (and aliens having no nationality who last habitually resided in Haiti) who have continuously resided in the U.S. since January 12, 2010, and who remain in continual physical presence in the U.S. since January 21, 2010, may apply for TPS within the 180-day registration period.

The announcement indicates that, as of April 9, 2010, USCIS had received approximately 44,500 TPS application packages, more than 10% of which were rejected for such things as not including the appropriate filing fee or, in the alternative, a fee waiver request, not completing the biographical information, and submitting unsigned forms and/or incorrect forms. USCIS thus cautions applicants to thoroughly review their application packets before submitting them.

The announcement and other information pertaining to USCIS'action in connection with the earthquake in Haiti can be found at
The announcement can be found at 75 Fed. Reg. 3476 (Jan. 21, 2010)

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Wednesday, April 14, 2010

U.S. Department of Homeland Security Immigration Statistics 2009 Updates

Naturalizations in the United States: 2009 (4 pages - 320 KB)
This report presents information on the number and characteristics of foreign nationals who became American citizens during fiscal year 2009.
Data on Naturalizations Access data on persons who became American citizens in fiscal year 2009 by country of birth, state of residence, and other characteristics.

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Monday, April 12, 2010

Third Circuit partially overturns Matter of V-K-, 24 I&N Dec. 500 (BIA 2008)

 "We hold that the BIA erred in reviewing the finding of a probability of torture de novo; it was required to review the factual aspects of that inquiry for clear error, and it was entitled to review only the legal aspects of the inquiry de novo."

"Petitioner Vadim Kaplun, a citizen of the Ukraine, petitions for review of four decisions of the Board of Immigration Appeals resulting in a final order of removal that designated him removable for having committed an aggravated felony, denied him withholding of removal by virtue of having committed a particularly serious crime, and reviewed de novo and reversed the Immigration Judge’s finding of a clear probability of future torture if Kaplun were removed. He contends that the Government did not prove he committed an aggravated felony by clear and convincing evidence; as a non- violent, white collar offense, his offense was not a particularly serious crime; and the BIA applied an improper de novo standard of review to the IJ’s finding that Kaplun’s torture if removed would be probable. We conclude that the BIA was correct on the first two issues, but applied an incorrect standard of review on the third. Accordingly, we deny the petition for review on the first two claims, and grant it on the third claim.

Kaplun is a native of the Ukraine who was admitted to the United States in 1977 as a seven-year-old refugee. He later became a legal permanent resident. In 1997 and 1998 he was charged and convicted in two federal criminal proceedings based on his participation in fraudulent stock schemes.

For reasons desribed below, only the 1998 conviction is at issue here. Kaplun there pled guilty to an information1 alleging securities fraud with losses of nearly $900,000 under 15 U.S.C. §§ 77q, 77x, and 18 U.S.C. § 2. Per the pre-sentence investigation report (PSR), the total loss for the 1998 offense was described as “at least $700,000 and less than $1,000,000.” The $700,000 figure was used twice more in the PSR to calculate the specific offense level2 and to calculate the maximum fine. Defense counsel made no objection to the PSR. After the District Court adopted the PSR (save for two exceptions not relevant here) and granted a downward departure, the undisputed Guideline range was 51–63 months’ imprisonment. Kaplun was sentenced to 56 months’ imprisonment for the 1998 conviction, but a fine was waived because of his inability to pay.

The Government began removal proceedings against Kaplun in 2001 based on the 1997 and 1998 convictions. He denied removability and later submitted an application for asylum. The Government produced the judgment of conviction, the PSR, and the information to establish the 1998 conviction and its surrounding facts. No plea colloquy was produced, though Kaplun does not deny that he pled guilty to the single- count information.

In his application for asylum, Kaplun claimed that, as a Jewish refugee, he would be subjected to persecution and torture if he were removed to the Ukraine. In support of his claims, he procured an expert witness to give testimony on anti-Semitism in the Ukraine. This expert gave detailed testimony on the situation and voiced disagreement with various Government reports on the extent of anti-Semitism in that country. He also testified that Kaplun would be unable to gain citizenship, get a job, rent an apartment, or even buy a train ticket. It was his expert opinion that Kaplun would be living on the street, destitute, and would be targeted for extortion and torture.

In an April 2004 ruling, the IJ found Kaplun removable based on his prior convictions (though it was unclear which of the two convictions qualified), but granted withholding of removal and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading  Treatment or Punishment (“CAT”),3 crediting the testimony of Kaplun’s expert. Despite this, Kaplun appealed the part of the ruling that found him removable. The Government cross- appealed the part of the ruling granting withholding of removal.

Third Circuit partially overturns Matter of V-K-, 24 I&N Dec. 500 (BIA 2008)
(Opinion filed: April 9, 2010)

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Friday, April 9, 2010

Padilla v. Kentucky and the Immigration Consequences of Crimes

On March 31, 2010, in a landmark decision called Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen defendant regarding the immigration consequences of a guilty plea, and that absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

On Immigration Advocates Network:

The "Immigration and Crimes" library contains:

- "National Practice Advisory: Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," by the Immigrant Defense Project on behalf of the Defending Immigrants Partnership at
(login required). This national practice advisory provides a summary and key points of the Padilla decision for criminal defense lawyers, a brief review of select defense lawyer professional standards cited by the court, an immigration consequences of crimes checklist, and a summary of resources available to criminal defense lawyers nationally.

- "Immigration Consequences of Criminal Convictions Checklist" at
(login required). This is a one page reference sheet that provides an overview of the immigration consequences of criminal convictions.

- "Removal Defense Checklist in Criminal Charge Cases" at
(login required). This checklist summarizes some defensive legal arguments and strategies that non-citizens and their legal representatives may pursue in removal proceedings involving crime-related charges.

- Quick reference guides and manuals on the immigration consequences of state offenses in over 18 states and for federal offenses at (login required). This section of the library contains 11 comprehensive charts, including Arizona, California, Florida, Illinois, Indiana, New Jersey, New York, Virginia, Washington, Wisconsin, and federal. It also includes six abbreviated charts that cover Connecticut, Florida, Vermont, New Mexico, North Carolina, Massachusetts, and Texas.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Approach to Aggravated Felony Determinations," by the Immigrant Defense Project and the National Immigration Project, at (login required). This practice advisory analyzes the Nijhawan's impact on the application of the categorical approach to aggravated felony determinations generally, and provides specific suggestions on how Nijhawan may be used affirmatively to overcome unfavorable case law in certain jurisdictions on certain aggravated felony issues, including the reach of the sexual abuse of a minor and drug trafficking grounds.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Analysis to Selected Grounds of Inadmissibility and Deportability," by the Immigrant Legal Resource Center, at
(login required). This practice advisory provides a summary of the opinion, practice tips for criminal and immigration counsel, highlights one issue to be considered under the categorical approach called the "missing element" rule, and explores the potential effect of the decision if courts apply Nijhawan to the grounds of inadmissibility and deportability.

- "Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients," by the Immigrant Defense Project, at (login required). This practice advisory discusses the basics of the "categorical approach" that immigration courts employ to determine whether a state or federal criminal offense falls within the criminal grounds of removal (deportation) and why it is important to criminal defense attorneys. It also provides background on recent developments in the "categorical approach" and provides practice tips to help criminal defenders represent immigrant clients to take advantage of the categorical approach where it applies and to avoid or mitigate negative immigration consequences under these new legal developments.

- "Practice Advisory: Defense Arguments Against Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)," by the Immigrant Legal Resource Center, at (login required). This advisory provides arguments to refute the BIA's decision that a respondent bears the burden of document production to establish that a conviction under a divisible statute is not a bar to relief and that any conviction of a crime involving moral turpitude is a bar to non-LPR cancellation.

The "Podcasts" section contains:

- "Immigration Consequences of Crimes: Statutory Rape - When is it an Aggravated Felony," by Kathy Brady, Senior Staff Attorney at the Immigration Legal Resource Center. This podcast analyzes the BIA and circuit court decisions on statutory rape, consensual sex and sexual abuse of a minor, misdemeanor and felony convictions in this area of law, the importance of examining the record of conviction and other related issues at (login required)

- "Understanding the Immigration Law Consequences of Criminal Activity," produced by the American Immigration Lawyers Association (AILA), this podcast features AILA members Mary E. Kramer, David Leopold, and Thomas E. Moseley. It provides general advice for representing foreign born clients with respect to deportation or inadmissibility consequences of pleas at (login required)
- "Common Questions and Answers on the Immigration Consequences of Juvenile Delinquency," presented by Angie Junck, Staff Attorney at the Immigrant Legal Resource Center (ILRC). This podcast discusses what a juvenile delinquency disposition is, whether there are immigration consequences to a delinquency disposition, how to obtain records of delinquency dispositions, special considerations when representing minors with delinquency dispositions and other issues at (login required)

The "Webinars" section contains:

- "Immigration Consequences of Delinquency," presented by the Immigration Legal Resource Center. This webinar provides an overview and framework for analyzing the immigration consequences of delinquency and underscores the differences from the immigration consequences of crimes analysis. It provides background and strategies on particular grounds that are troublesome for immigrant youth, such as drug trafficking, drug use, gang, and violent related offenses. It also covers legal considerations in the disclosure of juvenile conduct in immigration applications, with a special focus on Form I-485, Adjustment of Status. Finally, practitioners share challenges, strategies, and other tips in representing youth with delinquency issues and how to win these cases as a matter of discretion. It is available at (login required)

- "Crimes Involving Moral Turpitude: Advocacy Strategies in Self-Petitioning and U Visa Representation," with Ann Benson, Directing Attorney for the Washington Defender Association's Immigration Project. This webinar discusses the crimes involving moral turpitude (CIMT) grounds of inadmissibility as it relates to self-petitioning and U visa applicants. Ann also discusses how to determine which CIMT grounds apply, how to apply the current CIMT analytical framework, and how to analyze cases and advocate for clients when there is a potential CIMT offense at (login required)

- "Crimes Based Inadmissibility Issues," presented by Mary Holper, Visiting Assistant Professor at Boston College Law School, and Sarah Bronstein, Staff Attorney with CLINIC. This webinar discusses the crime based grounds of inadmissibility, including crimes involving moral turpitude, controlled substance violations, exceptions to crime based grounds of inadmissibility, and the waivers that are available at
(login required)

Upcoming Trainings on Immigration and Crimes:

- On Friday, April 9, from 9 a.m. to 5 p.m. at the Dallas Bar Association, Catholic Charities of Dallas Immigration and Legal Services will host a training called, "Immigration Consequences of Crimes: Relief from Removal." More information is available at

- The American Bar Association presents "The Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the U. S. Supreme Court," an in-person training, teleconference and live audio webcast on Thursday, April 29, 2010. More information is available at

- The Immigrant Legal Resource Center is hosting a crimes webinar series from April through June, which includes: Part I: Introduction to Immigration Consequences of Crimes on Thursday, April 15 from 10:00 - 11:30 a.m. PDT; Part II: Family Immigration for Clients with Criminal Histories on Tuesday, May 4 from 12:00 -1:30 p.m. PDT; and Part III: Applications for Relief in Removal Proceedings on Thursday, June 10 from 12 - 1:30 p.m. PDT. To register, visit and select "seminars."

- The Defending Immigrants Partnership will be presenting a national webinar, "The Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," at the end of April for indigent criminal defenders. For updates visit

- For ongoing immigration and crimes trainings throughout the year, visit the Law Offices of Norton Tooby website at

Other Resources on Immigration and Crimes:

Defending Immigrants Partnership

The Defending Immigrants Partnership website is dedicated exclusively to providing resources to criminal defenders representing noncitizen defendants at

Immigrant Legal Resource Center

The Immigrant Legal Resource Center website contains information on the intersection of immigration and criminal law at

National Immigration Project of the NLG

The National Immigration Project of the NLG website includes advisories, pleadings and other information on the immigration consequences of criminal convictions at

Immigrant Defense Project

The Immigrant Defense Project website provides information and resources on the immigration consequences of criminal convictions for criminal defenders, immigration advocates, and immigrants at

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The right of refugees and asylees to work in the U.S.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices within the Department of Justice (DOJ) has issued two flyers, one for employers and one for refugees and asylees, regarding the right of refugees and asylees to work in the U.S.

Download memo

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USCIS to End Special Humanitarian Parole Program for Haitian Orphans at Haitian Government's Request

U.S. Citizenship and Immigration Services (USCIS) advises that the Haiti government has requested that the U.S. provide it with a final list of orphans being considered under the Special Humanitarian Parole Program for Haitian Orphans. As a result, USCIS has announced that it will stop accepting new requests for consideration under the special program as of April 14, 2010, and will resume regular processing of intercountry adoptions.

USCIS believes that the vast majority of adoption requests for orphans who meet the criteria of the special program have already been submitted under the program that Department of Homeland Security Secretary Janet Napolitano authorized after the January 2010 earthquake which devastated Haiti. Parole was authorized for two specific and limited groups of Haitian children: (1) those who either had full and final adoptions completed by their U.S. parents before the earthquake and who were legally confirmed as eligible for intercountry adoption by the government of Haiti and (2) those who were far enough along in the adoption process that both the U.S. and Haitian governments could verify the identity and eligibility of the children for adoption and the U.S. government could confirm the suitability of the adoptive parents.

Since January 18, USCIS has authorized parole for more than 1,000 orphans under the special program, and, as of April 5, approximately 340 cases were still being considered. After April 13, 2010, intercountry adoption cases involving Haitian orphans will again be processed through normal procedures. USCIS advises that the government of Haiti has already begun accepting new documents for adoption cases and the U.S. Embassy in Port-au-Prince has resumed regular processing. However, requests for humanitarian parole may be submitted through April 13. To initiate a case, send an e-mail to the HaitianAdoptions mailbox, including in the subject line the last name of the prospective parent(s) and the name of the child(ren) to be adopted.

In addition, provide:
  • the names and date of birth of the adoptive parent(s) and the orphaned child(ren)
  • the address and contact information for the adoptive parent(s), the adoption-service provider, if applicable, and the caregiver for the child(ren) in Haiti
  • a signed Form G-28 or privacy waiver if the adoptive parent(s) want USCIS to communicate about the humanitarian parole request with an attorney or other representative
  • recent photo(s) of the child(ren)
  • documentation showing that each child either was being adopted prior to January 12, 2010 and was legally confirmed as an orphan available for intercountry adoption by the government of Haiti through an adoption decree or custody grant to suitable U.S. citizen adoptive parents or was being identified by an adoption-service provider or facilitator as eligible for intercountry adoption and matched to prospective American adoptive parents prior to January 12, 2010
If the adoptive parents are in the process of gathering the evidence necessary to establish eligibility for parole, they may still submit a request to the e-mail box before the deadline with an explanation of the evidence that they are seeking to obtain but should provide, at a minimum, full names and dates of birth of the Haitian child(ren) and the prospective adoptive parent(s) and contact information for the prospective adoptive parent(s).

The Department of Homeland Security (DHS) had taken a number of steps in response to the crisis created by the January 12, 2010 earthquake in Haiti. Among them, DHS Secretary Janet Napolitano has announced an 18-month designation of temporary protected status (TPS) for Haiti. In addition, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro N. Mayorkas, on January 15, 2010, issued a memorandum to field leadership entitled "Initial Relief Efforts for Aliens Affected by the January 12, 2010 Haiti Earthquake." The memorandum provides interim field guidance for the various forms of relief that USCIS has committed to undertake as a result of the earthquake. The guidance applies to nationals and habitual residents of Haiti, some of whom may fall outside the scope of the TPS designation. Among the temporary relief discussed in the memorandum is humanitarian parole for adoptive children. Subsequent to the issuance of the memorandum, DHS Secretary Napolitano, in conjunction with the Department of State, issued a fact sheet and set of questions and answers addressing this humanitarian parole for orphans in more detail.

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Restructuring Immigration Adjudication by Stephen Legomsky, Washington University School of Law

Duke Law Journal, Vol. 59, pp. 1635-1721, 2010
Washington U. School of Law Working Paper No. 10-04-02

 Stephen H. Legomsky
Washington University School of Law

For decades, the immigration adjudication system has been under relentless attack from both the left and the right. The left has been concerned with the fairness of the proceedings, the accuracy and consistency of the outcomes, and the acceptability of both the procedures and the outcomes to the parties and to the public. The right has focused on the fiscal costs and elapsed times of these proceedings. This Article demonstrates that all of these criticisms have been well founded and that the roots of the problems are severe underfunding, reckless procedural shortcuts, the politicization of the process, and a handful of adjudicators personally ill suited to the task.

Over the years, commentators and commissions have offered thoughtful solutions, but consensus has proven elusive. This Article calls for redesigning the entire system. For the trial phase, this Article endorses previous proposals for converting the current immigration judges into administrative law judges, who enjoy greater job security, and moving them from the Department of Justice into a new, independent executive branch tribunal. For the appellate phase, this Article proposes radical surgery, replacing both administrative appeals and regional court of appeals review with a single round of appellate review by a new, Article III immigration court. The new court would be staffed by experienced Article III district and circuit judges serving two-year assignments. This new system would significantly depoliticize the hiring, judging, supervision, and control of immigration adjudicators. It would consolidate the two current, largely duplicative rounds of appellate review into one, in the process restoring the Article III jurisdiction that Congress stripped away in 1996. It would save tax dollars and speed the removal process, thus reducing not only prolonged detention, but also what some believe is a meaningful incentive to file frivolous appeals to delay removal. It would preserve both specialized expertise and a generalist perspective. And it is politically realistic, permitting all sides to meet the specific objectives they hold most dear while requiring each side to make only modest concessions.

Keywords: Immigration, Aliens, Noncitizens, Deportation, Removal, Adjudication, EOIR, BIA, Immigration Judges
Accepted Paper Series 

One-Click Download

Date posted: April 07, 2010 ; Last revised: April 07, 2010

Legomsky, Stephen H. , Restructuring Immigration Adjudication (April 7, 2010). Duke Law Journal, Vol. 59, pp. 1635-1721, 2010; Washington U. School of Law Working Paper No. 10-04-02. Available at SSRN:
Contact Information
Stephen H. Legomsky (Contact Author)
Washington University School of Law ( email )
Campus Box 1120
One Brookings Drive
St. Louis, MO 63130
United States
(314) 935-6469 (Phone)
(314) 935-5356 (Fax)

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Tuesday, April 6, 2010

DHS | Yearbook of Immigration Statistics

A compendium of tables that provides data on foreign nationals who, during a fiscal year, were granted lawful permanent residence (i.e., admitted as immigrants or became legal permanent residents), were admitted into the United States on a temporary basis (e.g., tourists, students, or workers), applied for asylum or refugee status, or were naturalized. The Yearbook also presents data on immigration law enforcement actions, including alien apprehensions, removals, and prosecutions.

In addition to the Yearbook, the Office of Immigration Statistics Annual Flow Reports and Annual Reports provide text, tables, and charts on legal permanent residents, refugees and asylees, nonimmigrant admissions, naturalizations, and enforcement actions. The Annual Flow Reports and Annual Reports have replaced the text chapters in the earlier editions of the Yearbook.

2008 Yearbook of Immigration Statistics Yearbook

The Yearbook of Immigration Statistics is a compendium of tables that provides data on foreign nationals who, during a fiscal year, were granted lawful permanent residence (i.e., admitted as immigrants or became legal permanent residents), were admitted into the United States on a temporary basis (e.g., tourists, students, or workers), applied for asylum or refugee status, or were naturalized.

The Yearbook also presents data on immigration law enforcement actions, including alien apprehensions, removals, and prosecutions.

In addition to the Yearbook, the Office of Immigration Statistics Annual Flow Reports and Annual Reports provide text, tables, and charts on legal permanent residents, refugees and asylees, nonimmigrant admissions, naturalizations, and enforcement actions. The Annual Flow Reports and Annual Reports have replaced the text chapters in the earlier editions of the Yearbook.

2008 Yearbook of Immigration Statistics


Legal Permanent Residents

Refugees and Asylees


Nonimmigrant Admissions


2007 Yearbook of Immigration Statistics


Legal Permanent Residents

Refugees and Asylees


Nonimmigrant Admissions


2006 Yearbook of Immigration Statistics


Legal Permanent Residents

Refugees and Asylees


Nonimmigrant Admissions


2005 Yearbook of Immigration Statistics


Legal Permanent Residents

Refugees and Asylees

Nonimmigrant Admissions



2004 Yearbook of Immigration Statistics

Legal Permanent Residents
Refugees and Asylees
Nonimmigrant Admissions
View the Archives page for previous editions of the Yearbook.

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DHS: Secretary Napolitano Announces New Measures to Strengthen Aviation Security

 This month, foreign nationals traveling to the United States will begin to see changes in airport security screening procedures, as the U.S. Transportation Safety Administration implements new screening policies that will focus less on a traveler's country of citizenship and more on intelligence data that flags security risks. In particular, foreign nationals from 14 countries of concern should no longer be automatically subject to heightened screening because of their nationality alone. The new policies were announced on April 2, 2010 by the Department of Homeland Security.
Airport security personnel will use security databases and watch lists in combination with intelligence about specific terrorism suspects, their physical descriptions and travel patterns to identify travelers for increased scrutiny. Foreign nationals whose traits and travel histories are similar to intelligence data could be selected for additional airport screening. The new procedures replace an emergency measure implemented in January that required automatic additional screening for citizens and nationals of Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria and Yemen.
When traveling to the United States from abroad, foreign nationals should still expect strict screening and delays at airports, including close questioning, random searches, and other measures, and could still be subject to secondary screening if their information matches data from intelligence reports or watch lists. However, having a certain nationality or holding a passport from one of the 14 countries of concern should not, by itself, trigger additional screening.
DHS announcement is available at
Read more »


Thursday, April 1, 2010

State and County Demographic Data, updated profiles of the Latino population in the 50 U.S. states

  1. State and County Demographic Data on Hispanics - Pew Hispanic Center
  2. Statistical Portrait of Hispanics in the United States, 2008
  3. Foreign-Born Population in the United States, 2008
  4.  Summary: Statistical Profiles of the Hispanic and Foreign-Born Populations in the U.S.
Demographic and Economic Data on Hispanics by State: The Pew Hispanic Center.  The Pew Hispanic Center is a project of the Pew Research Center, a nonpartisan "fact tank" that provides informatio on the issues, attitudes and trends shaping America and the world. It is supported by The Pew Charitable Trusts. 1615 L Street, NW Suite 700  Washington, DC 20036-5610 p 202.419.3600   f 202.419.3608

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