I always enjoy hearing a court call out the government for bad behavior – it happens so much to the private bar, it’s nice for the other side to get some heat too. The Board of Immigration Appeals issued a decision recently (posted on AILA’s Infonet) dimissing the Department of Homeland Security’s appeal in an asylum case. After reading the decision, I have to really wonder about the competence of some of the DHS attorneys. The BIA ripped the DHS’s appeal apart, holding that the Immigration Judge’s credibility determination was not “clearly erroneous” – the applicable legal standard - and that DHS’s contention that the asylum grant was “frivilous” is likewise without merit. The icing on top of this BIA cake, however, is the last paragraph of the decision, which states “[o]ur review of the record reveals that the DHS attorney exhibited intemperate, disrespectful, and unprofessional behavior towards the Immigration Judge. Such behavior is unbecoming of DHS counsel.” Oh, that is sweet – although the vast majority of DHS attorneys are indeed professional and courteous, there are some that are definitely not paragons of good behavior in the courtroom, and I commend the BIA for highlighting what I can only imagine is one egregious example. The private immigration bar has had somewhat of a tarnished reputation over the years from some high-profile bad apples, but this case shows that said apples can fall on either side of any given tree – something worth remembering the next time a private immigration attorney plays the fool in or out of the courtroom.
It used to be that asylum was practically impossible to get in an Immigration Court. According to TRAC – the Transactional Records Access Clearinghouse at Syracuse University – the denial rate for asylum cases in Immigration Court was a whopping 89% nationally in 1986. Times have indeed changed. TRAC recently reported that thus far in 2010, the national denial rate for asylum cases in Immigration Court is approximately 50%, an incredible jump in just 24 years. Interestingly, the overall number of asylum cases in the court system has dropped, which is probably one reason so many more cases are granted (assuming, of course, that the types of cases that are no longer being filed weren’t very meritorious in the first place). Click here to read TRAC’s report and to find additional information on Immigration Court statistics.
Another brilliant idea from our government: the Executive Office of Immigration Review (EOIR), a.k.a. the Immigration Court, has decided to change its user-friendly phone system. Before, attorneys (or anyone, for that matter) were able to call a hotline, punch in an A-number, and find out that client’s next hearing date, whether he or she had already been deported, whether the asylum clock started to run, and much more. As of this week, however, interested parties need to know (1) the Respondent’s A-number and (2) the date shown on their Notice to Appear (NTA). Although this purportedly complies with federal privacy laws, it’s sure to make the lives of most immigration attorneys much more complicated than they need to be. Many times, we simply don’t have access to NTAs, which means that we won’t have access to the EOIR’s handy phone system either. Worse yet, the government sometimes doesn’t even issue an NTA immediately after detaining a foreign national, which means that the government can prevent attorneys and family members from finding out critical information about someone’s immigration court case if it so chooses. Attorneys are in the process of trying to fight this change, which will hopefully produce some positive results. I’ll keep you posted on the progress of our struggle.
The U.S. Supreme Court ruled on a significant immigration-related case last week. In Carachuri-Rosendo v. Holder, the Court held that a second conviction for simple possession of a controlled substance does not render a non-citizen an ”aggravated felon,” which would preclude most forms of relief in Immigration Court. The specific issue here was whether an alien convicted under state law for simple drug possession, a misdemeanor under federal law, has actually been convicted of an aggravated felony, since that person could have been prosecuted for recidivist simple possession, which is a federal felony (despite the fact that there was no charge or finding of a prior conviction in his original prosecution for possession). Without going into too much detail, the Court answered this question in the negative, reversing the lower courts and allowing Mr. Carachuri-Rosendo to remain in the United States. More generally, however, this case stands for the proposition that simple possession convictions are not the serious crimes some Immigration Judges make them out to be. Justice John Paul Stevens said it best: “We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an ‘aggravated felony.’” Thank you, finally, for a dose of common sense. I just hope that more of Justice Stephens’ sensible view of crimes in immigration law trickles down to decision-makers at the lower levels of our detention, removal, and Immigration Court systems.
President Obama’s aunt from Kenya won her asylum case in Immigration Court last week. Judge Leonard Shapiro of the Boston Immigration Court granted Zeituni Onyango’s asylum petition, allowing her to remain in the United States indefinitely. Ms. Onyango is the President’s father’s half-sister, and has been fighting to stay in the U.S. for about six years. One item in CNN’s article, though, caught my attention – apparently, “Onyango…applied for political asylum in 2002 due to violence in her native Kenya. She was a legal resident of the United States at the time and had received a Social Security card a year earlier.” If Ms. Onyango was a legal resident when she applied for asylum, why did she apply in the first place? Maybe she had legal status in the U.S. through some other means, and was about to lose her status, or maybe she had applied to adjust her status, and her petition was denied or took too long to adjudicate. If the President’s aunt was a permanent resident, though, she would have no reason to apply for asylum – unless she did something that rendered her removable, which would be interesting to find out. Curiosity aside, Ms. Onyango’s case is now closed, and any immigration problems she might have had in the past are all pretty much irrelevant now.
An interesting precedent decision came down from the BIA yesterday. In Matter of Koljenovic, 25 I & N Dec. 219 (BIA 2010), the Board held that an “adjustment” is an admission for purposes of seeking a waiver under section 212(h) of the Immigration and Nationality Act. The Respondent in this case, Safet Koljenovic, entered the United States illegally, adjusted his status to permanent resident in 2001, was convicted of second-degree organized fraud in 2004, and was put into removal proceedings in 2006, after returning from a trip abroad. Mr. Koljenovic attempted to apply for a section 212(h) waiver in Immigration Court – which would have allowed him to re-adjust his status to that of a lawful permanent resident – but the Immigration Judge denied his request, stating that he lacked the necessary seven years of continuous lawful residence after having been admitted to the U.S.
Matter of Koljenovic makes the definition of “admission” consistent with that under the provisions for Cancellation of Removal for Lawful Permanent Residents, creating a sort of harmony between the various forms of relief from removal available to permanent residents convicted of different crimes. Many crimes render permanent residents and other aliens completely ineligible for any form of relief, while others are completely harmless; still other crimes allow lawful permanent residents to apply for a waiver of inadmissibility or for cancellation of removal, both of which would essentially return them to the position they were in before proceedings were initiated. These forms of relief all have specific eligibility requirements per statute, and Immigration Judges won’t even consider the merits of a particular case unless these preliminary requirements have been met. In this case, Mr. Koljenovic lacked the required seven years of continuous resident after having been “admitted,” and did not qualify for the only form of relief that would have helped him – a section 212(h) waiver. Interestingly, this seven years is measured from the date that proceedings were initiated rather than from the date that the crime was committed, in contrast to Cancellation of Removal. Matter of Koljenovic does us all a favor (well, all of us except Mr. Koljenovic) by clarifying the requirements for 212(h) eligibility and demonstrating that, although these waivers are a versatile tool for the immigration attorney, they cannot and will not apply to every fact pattern.
Constantine Kallas, a former Trial Attorney with ICE in Los Angeles, was found guilty of accepting bribes from undocumented immigrants and filing phony applications for employment authorization and other immigration benefits after a three-week jury trial in the U.S. District Court in Los Angeles. Kallas now faces up to 256 years in prison on more than 36 counts of conspiracy, accepting bribes, tax evasion, and various other fraud charges. An article today in the L.A. Daily Journal states that “Kallas posed as an immigration judge or other high-level official to obtain bribes as high as $20,000. By the time of his arrest in 2008, Kallas’s bank accounts showed he had collected nearly $1 million beyond his salary over an eight-year period.” The article also stated that L.A. Immigration Judges Mimi Tsankov and Tara Naselow-Nahas testified for the prosecution, recounting how Mr. Kallas asked that a particular case be dismissed because the Respondent was “cooperating with the government.” The only problem: Mr. Kallas never revealed that the Respondent was his housekeeper’s daughter, and Judge Naselow, at the time Mr. Kallas’ supervisor, never authorized a dismissal. Oh, and Mr. Kallas’ housekeeper had also paid him $7,000.00 to get the case kicked out of court.
I hope that this case serves as a warning to all those immigration practitioners out there – on either side of the aisle - that are considering doing something fraudulent. Simply put, DON’T DO IT. You will be caught, the Daily Journal will write an article about you, and you’ll be an embarrassment to your family and friends. You’ll also have defrauded your government and put the cases of every other immigrant with whom you’ve dealt in question. Is that really worth a few extra hundred thousand dollars? These are tough times, but the answer still has to be a resounding NO.
I put together an application for LPR Cancellation of Removal yesterday. In case you don’t know, LPR Cancellation of Removal is a remedy for certain Lawful Permanent Residents that have certain criminal convictions. LPRs that qualify for cancellation have to show that, on balance, the equities in their case weigh in favor of them remaining in the United States. These equities will always include the nature of the crime(s) committed, whether or not there has been rehabilitation, family ties in the United States, and other factors that show why the Immigration Judge should exercise discretion favorably. Interesting as it might be, this post is not about LPR Cancellation. It is about the extraordinary volume of paper that cases such as LPR Cancellation generate. My finished application – containing evidence of the equities in this case – was 162 pages, and I had to create two copies: one for the Immigration Judge and one for the Department of Homeland Security Trial Attorney. Normally, I would have also needed a third copy for the client’s file, but fortunately my colleague was able to scan a complete copy of the application onto his computer, which can be printed out later (or presumably brought to court on a laptop, for reference).
So there you go – 324 pages of material for one court case. In this age of connectivity and rapid technological advances, I fail to see why all of this paper is still necessary. Any court matter can be done without paper. Any Respondent’s file can be scanned and available on the Judge’s computer or on a Trial Attorney’s laptop. Anything can be emailed, and proof of having sent the email can be obtained fairly easily (since proof of service on the government is required for all Immigration Court cases). True, some items need to be submitted in hard copy – medical examinations, for example, or proof of Biometrics – but these can always been submitted in addition to a soft copy. Advances in Information Technology can change the way government and the courts operate, improving the quality of the service we receive and conserving resources in the process. There is already limited e-filing of certain applications with USCIS, yet many other petitions should also be available for e-filing. The EOIR should take a hint from USCIS and provide for e-filing as well, and eventually move to an exclusive e-filing format for all immigration matters. I know that funding to create such a system is limited, but this would be an expenditure of funds now to save a tremendous amount of money down the road in material and personnel costs. It’s time for immigration to move firmly into the 21st century, once and for all. There is no reason why this can’t happen right now.
The Transactional Records Access Clearinghouse (TRAC) released another report about immigration this week, this time about the volume of cases in the Immigration Court system. The report found that a record 228,421 cases are currently pending at the Immigration Court, also known by its more official name the Executive Office for Immigration Review, or EOIR. Worse yet, the average amount of time these cases pend before an Immigration Judge is now 439 days – a new high. The report goes on to show how the pace of hiring new Immigration Judges has not kept up with an increasing caseload, leading to progressively longer wait times, and that the situation is most dire in California – more specifically, in Los Angeles. Respondents in the jurisdiction of the Los Angeles Immigration Court can expect an average wait of 713 days before their cases are adjudicated, an astronomically high number compared to the Immigration Courts in a state such as Louisiana, which have an average wait time of 195 days.
The EOIR wasted no time responding to the TRAC report, saying in a rather snippy letter that ”[t]he report is unbalanced and fails to acknowledge the effort and progress that the Executive Office for Immigration Review (EOIR) has made, and continues to make, to address the immigration caseload.” The letter cites an unprecedented effort by the EOIR to hire more Immigration Judges – 28 new positions with the FY2010 budget, plus an additional 19 from before - which would bring the total number of Judges to 280 by the end of 2010.
So who is right? I think that TRAC’s data speaks for itself – at least for now. Although the situation might improve with the EOIR’s new hiring initiative, the fact remains that, at this particular moment in time, Respondents in the Immigration Court system face very long waits. That might change in the near future, but if the volume of immigration apprehensions keeps increasing, as it has been for the past several years under both the Bush and Obama administrations, the EOIR’s caseload can’t help but increase as well, 280 Judges or not.
Yes, I’ve been noticeably absent lately due to a suprisingly high volume of work. I fully plan to be more attentive to my blogging responsibilities the rest of this week, though – and will do my best to continue posting at least one entry per day.
There was a great editorial in the L.A. Times on February 22nd regarding the American Bar Association’s recent criticisms of the Immigration Courts system (I especially like the “death penalty cases in traffic court” quote from Dana Marks, President of the National Association of Immigration Judges). Instead of my usual paraphrasing and commenting, I’ll just reprint the editorial in its entireity. It should speak for itself.
Our Overloaded Immigration Courts
The result of the government’s get-tough policies has been imperfect justice at best.
It sounds counterintuitive, but since the failure of comprehensive immigration reform in 2007, the prevailing wisdom in Washington has been that the way to earn public support for allowing this country’s approximately 11 million undocumented immigrants a path to citizenship is for the federal government to vigorously prosecute violations of immigration law. Tough enforcement, in other words, will convince Americans that reform is warranted.
To that end, the Obama administration picked up where its predecessor left off — adding miles of new fencing and hundreds of new agents to the border and deporting undocumented immigrants at a record-breaking pace. The volume is all the more notable given that fewer migrants are coming in illegally and that almost 1 million left voluntarily last year.
The result of the increased enforcement is a mountainous caseload overwhelming the nation’s immigration courts. (They are not courts in the usual sense, and do not belong to the judicial branch of government. Rather, judges are employees of the attorney general.) In 2008, for example, 231 judges completed an average of 1,200 proceedings each, and the numbers keep climbing. The work is “like holding death penalty cases in traffic court,” Dana L. Marks, an immigration judge in San Francisco and the president of the National Assn. of Immigration Judges, told the New York Times.
A recent report by the American Bar Assn. calls for making the court system independent of the Justice Department to reduce “public skepticism” and increase respect, and paints a harrowing picture in which final decisions are rushed, haphazard and inconsistent. At times the outcome of removal proceedings depends less on the facts of an immigrant’s case than on which judge hears the case, the report says. It calls for hiring 100 additional immigration judges as soon as possible, adding new training and requiring more written, reasoned decisions from judges.
Many of the recommendations in the report would require congressional approval. Others should be afforded careful consideration by the Department of Homeland Security. The ABA, for example, calls on DHS personnel to use prosecutorial discretion and stop clogging the system by hauling noncitizens into court needlessly even if they are entitled to remain and claim legal permanent resident status, and litigating cases after the facts make removal unlikely.
A comprehensive overhaul of the nation’s immigration laws is now securely on Washington’s back burner. That’s lamentable because the best way to ease the burden on the court system would be to see reform accomplished. But as the ABA’s report demonstrates, there are plenty of changes that should be made in the meantime.
Copyright © 2010, The Los Angeles Times
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