HAMILTON WINS GRANT OF ASYLUM FOR INDONESIAN ASYLUM APPLICANT IN LOS ANGELES IMMIGRATION COURT

This morning, Judge Travieso of the Los Angeles Immigration Court granted my Indonesian client asylum, in a case which was tried over several days spread out over more than a year.  The case commenced in 2007 at the Asylum Office (AO) and was denied by the AO and referred to the Immigration Court in Removal Proceedings where the asylum claim was renewed as a defense to removal.

The applicant was not only required to demonstrate a "well founded fear of persecution" in Indonesia, but also, to show why after residing in the United States for many years before the 2007, such filing was justified, given the general one-year filing requirement in asylum claims, which requires that an applicant must apply for asylum within one year of his or her arrival in the United States.

We were ultimately able to establish that the applicant qualified for one of the very narrow exceptions to the one year requirement, and after extensive testimony, documentation, and legal citation, that the requisite burden had been met to qualify the client for asylum.

The client was relieved and at the same time overjoyed to hear the judge's words of welcome to the United States, and to have concluded a long and challenging journey for lawful status in the United States.  Asylees (those granted asylum) may apply for lawful permanent residence (green card) one year after the asylum claim is approved, and then for naturalization (US Citizenship) five years after the green card is approved.  The asylee is also permitted to apply for and upon approval, travel to, any country of the world (except of course, the country of persecution) on a Refugee Travel Document.

This approval has been my 16th completed immigration trial of the year 2012 in Removal Proceedings, and the 16th in which my client has secured some form of permanent or indefinite immigration relief.

By:  Duane M. Hamilton

LOS ANGELES IMMIGRATION JUDGE GRANTS ASYLUM TO KENYAN IN CASE COMMENCED IN 2005

This afternoon I completed an asylum trial before Immigration Judge Dorfman of the Los Angeles Immigration Court in the matter of a Kenyan Kikuyu, whose case I took on at the Asylum Office (AO) level in 2005.  The case was initially denied by the AO and administratively closed and could not be referred to Immigration Court due to a lack of jurisdiction on the part of the court at the time.

In early 2010, long after court jurisdiction became possible, the client returned to my firm wishing to continue the asylum claim before the court in "Removal Proceedings."  We thus requested of the AO that the case be referred to the Immigration Court and commenced proceedings before the Court in mid 2010.

Now, seven years after we commenced this case, and after numerous delays, including changes in judges, we are happy to have been given our day in court and to have secured asylum for this cient.

This has been my 15th immigration trial of the year, and the 15th in which the client, facing removal from the United States, has secured some form of permanent or indifinite immigration relief.

By: Duane M. Hamilton

HAMILTON'S 14TH IMMIGRATION TRIAL FOR 2012 ENDS IN GRANT OF LAWFUL RESIDENCE FOR KENYAN COUPLE

Got up at 4:30 this morning to get ready for my 14th immigration trial of the year.  Trial proceedings began before Judge Ashley Tabaddor of the Los Angeles Immigration Court, promply at 9:00 a.m. in the matter of a Kenyan couple seeking various overlapping forms of relief, including what we call Non-LPR Cancellation of Removal. 

In this challenging application, we must prove that the alien: has resided continuosly in the United States for at least 10 years; is of good moral character; has a qualifying relative who would suffer "exceptional and extremely unusual hardship" if the alien is removed from the U.S.; and the alien is deserving of approval in an exercise of the judge's discretion.  This hardship standard is far more than mere inconvenience, or even significant disadvantage which would generally be suffered by an alien forced to depart the United States. 

In this case (as in all of our cancellation cases this year) we were able to meet the very high hardship standard and satisfy all of the other elements of this particular form of relief, this time for both husband and wife independently.  The judge at length, approved the cancellation claims for both, warmly welcoming the the couple to the United States and informing them that they are Lawful Permanent Residents of this country from this day forward.  The Government's counsel, representing ICE, graciously waived appeal and wished the couple well.

I have tried 14 cases thus far this year in various immigration courts, and am fortunate enough in all of them, to have secured indefinite or permanent immigration relief, including, adjustment of status, cancellation of removal (both LPR and Non-LPR), asylum, withholding of removal, and termination of proceedings for individuals fighting to preserve their green cards after criminal conviction.  Our clients have not suffered any removal or voluntary departure orders, nor have I had to reserve appeal in any case so far this year.  Most (though not all) of the beneficiaries of these life changing grants of relief have been natives of Kenya.

By: Duane M. Hamilton, Esq.

HAMILTON SUCCESSFULLY COMPLETES THIRD IMMIGRATION TRIAL FOR OCTOBER

On October 18, 2012, I conducted my third immigration "Removal" trial for the month, before the Los Angeles, California Immigration Court, in the matter of a native of Kenya.  In spite of profound complexities in this matter, we concluded proceedings with a grant of Withholding of Removal, by Immigration Judge Tabaddor, which will allow our client to remain in the United States indefinitely, with continuing renewable employment authorization.

By:  Duane M. Hamilton

SEPTEMBER AND OCTOBER BEAR FRUIT FOR KENYAN AND JAMAICAN CLIENTS

In late September to October 10, 2012, I completed a couple important cases for Kenyans and one Jamaican family.

On September 27, 2012, the Anaheim Asylum Office (AO) granted asylum in what had been a protracted case with that office which necessitated my filing of complaints against an AO supervisor with Asylum Office Headquarters in Washington DC and with the Office of the Inspector General.  The case had been filed in mid 2011 and interviewed not long thereafter, yet remained pending for far longer than it should have due to certain internal matters at the AO.  Ultimately a second interview was conducted on September 27 and the case was granted that very day.  We are grateful to the AO and the officers who participated in resolving this matter.

On October 5, 2012, I conducted a trial in Los Angeles in my first Jamaican Non-LPR Cancellation of Removal claim.  The applicants had been residing in the United States, out of status, for a significant amount of time, but were able to demonstrate that they should be granted Lawful Permanent Residence as a result of their long stay in the US and certain hardships which their US born children would suffer were they to return to Jamaica.  The case was heard and approved by Judge Tabaddor of the Los Angeles Immigration Court.

On October 10, 2012, I completed a second day of trial in a hotly contested Kenyan asylum claim before Judge Rooyani of the Los Angeles Immigration Court.  The Government's attorneys argued that asylum should be denied because the case had not been filed within the requisite one year period required by law in asylum cases.  However, I was able to demonstrate, using the very particularized circumstances of the alien and the presentation of certain witnesses, including experts, that a waiver of the one year requirement should be granted.  Judge Rooyani found that the applicant had established eligibility for such waiver and had also met the required burden in the asylum claim, immediately granting the alien asylum in the United States.

All of these cases resulted in final decisions in which no appeal or referral was taken.  We look forward to our remaining matters scheduled for trial and other hearings this year.

By:  Duane M. Hamilton, Esq.

DHS PUBLISHES FORMS AND INSTRUCTIONS FOR NEW "CHILDHOOD ARRIVALS" PROCESS

This post, as is true in general of posts on this blog and other law related blogs, are informational only and not intended as legal advice.  Individuals persuing any immigration benefit, including the one discussed below are advised to consult individually with a qualified immigration attorney.

Yesterday, the Department of Homeland Security's USCIS released its new Form I-821D application for "Consideration of Deferred Action for Childhood Arrivals" and related instructions.  The agency will begin its acceptance and processing of these applications today.

This is a landmark event for certain young people who were brought to the United States as undocumented aliens, or who overstayed lawful periods of presence in the United States.  If you have been following this blog you may have read previous prosts with regard to this new process and some discussion as to what the requirements of said process might be.  Those requirements are now set forth in I-821D's instructions as follows:

An individual may be considered for deferred action for childhood arrivals if he or she:

1.  Was under the age of 31 as of June 15, 2012 (this is a change from the originally contemplated requirement that the the alien should not be above the age of 30);

2.  Came to the United States before reaching his or her 16th birthday;

3.  Has continuously resided in the United States since June 15, 2007, up to the present time;

4.  Was present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;

5.  Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012;

6.  Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

7.  Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

The instructions go on to present slightly varying requirements for "Childhood Arrivals Who Have Never Been in Removal Proceedings,"  "Childhood Arrivals Whose Removal Proceedings Were Terminated," and "Childhood Arrivals In Removal Proceedings, With a Final Order, or With Voluntary Departure."  For the first two of these categories, the alien must be 15 years or older at the time of filing and meet the 7 guidelines listed above to be considered for this benefit.  With respect to the last category, it appears that providing all of the 7 criteria are met, the alien may apply for the benefit even if he or she is under the age of 15.

Additionally, the benefit is not indefinite and at this juncture is only intended to last two years.  Further, it should be clear that this benefit does not confer "immigration status" on the alien, but merely places the alien in a class of aliens for whom deportation is deferred, and who therefore are allowed lawful employment in the United States.  Acquiring status for an undocumented or out of status alien is an entirely complex and challenging endevour, requiring careful consultation with an immigration attorney.

The I-821D is filed in conjunction with the I-765 application for employment authorization which requires a filing fee of $465.00 (including biometrics processing).  There is no separate filing fee for the I-821D itself.

The burden of proof in these matters of course, are on the alien, and thus, the alien is expected to prove each element or requirement with documentation (evidence), and should fully understand the legal and documentary requirements before filing.  Aliens applying for this benefit should also remember that they will be submitting to biometrics processing to verify their identity and the existence of any criminal background, among other things.  Thus, applicants with criminal arrest and/or conviction histories must take great care to ensure that a) any criminal conviction does not render them ineligible for the benefit, and b) that such criminal conviction background might not trigger removal proceedings against them if discovered by USCIS.

Aliens should also be reminded that non-lawyers are generally not permitted to give legal advice, and  may only fill out forms.  Hence, to the extent an alien pursuing this benefit wishes to be advised as to the process in general and/or any risks involved in applying for said benefit, only lawyers (and a limited number of non-lawyers, under the supervision of  lawyers and certified to provide assistance by the government) may provide such counsel.  It would indeed be a wise decision for the alien to be represented by a qualified immigration lawyer in such an important and life-changing process.

We look forward to consulting with and assisting any prospective candidate  for this new and significant benefit.

By: Duane M. Hamilton, Esq.

WITHHOLDING OF REMOVAL SECURED BY ATTORNEY HAMILTON FOR KIKUYU TORTURE VICTIM

Sometimes, in spite of an attorney's best efforts, the alien in removal proceedings, is simply ineligible, for any number of technical reasons, for asylum.  It is at this point that contemporaneous applications such as Withholding of Removal and relief under the Convention Against Torture (CAT) rise to a level of critical importance, since failure to secure either of those two forms of relief (where no other relief applications are pending) could result in deportation or voluntary departure orders against the alien, which would have to be appealed in lengthy and often expensive administrative and/or judicial processes for the alien to remain in the US.

So it was  in my case on July 31, 2012 before Judge Naeslow-Nahas of Los Angeles, California.  At the end of a second half-day of trial, I had convinced the government's attorney that the alien, a Kenyan of the Kikuyu Tribe, met a technical legal exception to the one year filing rule for asylum cases, and that the alien had been tortured based on political opinion and hence did legally qualify for asylum.  Yet asylum claims do not have to be granted by the Immigration Judge, even after the applicant has met all of the legal requirements.  The judge retains discretion which allows her to deny asylum where she is simply unwilling to exercise such discretion favorably.  It is also sometimes the wise and prudent course in some very special cases, for all parties in this circumstance to accept and be grateful for the judge's approval of withholding or CAT relief which are mandatory forms of relief that do not allow for an exercise of discretion, but carry a higher burden of proof than asylum.  Hence, when an applicant wins withholding or CAT, he or she has presented a much more compelling case for that relief than would have been necessary for asylum.

Withholding and CAT are significant victories in Immigration Court because they prevent the government from deporting the alien to the country in which they were persecuted or fear persecution, and permit aliens to continue to renew their employment authorizations and remain in the United States indefinitely in most cases.  The downside is that the alien is not classified as a "refugee" under the law as he or she would have been with a grant of asylum and therefore is not entitled to the "refugee travel document" which would ensure the alien's reentry to the United States should the alien wish to travel outside of the US.  Withholding further does not have derivative benefits, hence spouses and children do not automatically receive withholding (or for that matter CAT) when the principal alien is granted such relief.  Each applicant must qualify for withholding and/or CAT on their own strength.  Further, where the spouse and children are outside of the US, withholding and CAT do not provide for a direct petition for those relatives.  Additionally, withholding and CAT do not provide a direct path to Lawful Permanent Residence and/or later US Citizenship.

We have thus far succeeded to win relief for all clients whose cases we have taken to trial in immigration court, this year.  Our clients are assured that no stone is left unturned in their cases.

By:  Duane M. Hamilton

DHS TO ROLL OUT NEW "CHILDHOOD ARRIVALS PROCESS" AUGUST 15, 2012

The Department of Homeland Security (DHS) announced on August 3, 2012, that it expects to have forms and instructions available for the new and much anticipated "Childhood Arrivals Process," which is intended to confer "Deferred Action" and employment authorization upon certain aliens for a period of two years.

Our understanding of the eligibility requirements thus far for this program is that aliens must demonstrate the following on a case by case basis:

1.  Came to the United States under the age of sixteen;

2.  Have continuously resided in the United States for at least five years preceding June 15, 2012;

3.  Are currently in school, have graduated from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the Coastt Guard or Armed Forces of the United States;

4.  Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5.  Are not above the age of thirty.

Applicants may apply for their employment authorization documents (EADs) simultaneously with the application for deferred action.  It appears that there will be a filing fee to DHS for this application and the accompanying EAD application, and that fee waivers will not be available for the EAD portion of the process.

This process will be available for aliens in removal proceedings, those with final orders of removal, and those who have never been in removal proceedings.

It appears that USCIS expects to be prepared to receive applications for this benefit from August 15, 2012, however prospective applicants would be wise to have their eligibility carefully assessed by immigration lawyers on a case by case basis before applying.  This is because all applicants will be required to submit to "biometrics" so that their backgrounds, including criminal history can be checked.  Hence, USCIS will likely discover any arrest and conviction records for such applicants.  Aliens with criminal histories are often vulnerable to denial of applications for relief and deportation, hence, such cases must be handled with the utmost of care.  Further, this relief is "discretionary," which means there are other non-criminal factors which could possibly cause denial of these applications.

Articles and posts on the internet, including this post are not intended as legal advise and aliens can only be certain or confident about their individual circumstances and processes through consultation and analysis by a qualified attorney.

We understand that there are non-lawyers who have started to accept fees and are making promises about the outcome of this process.  It should be understood that the process has not yet commenced and without instructions and a concrete understanding of the actual process, it is this lawyer's opinion that it may be premature to actually hire a professional for assistance in these matters until at least August 15, 2012. 

We are excited about these developments and looking forward to advising and assisting candidates for this new form of relief.

By:  Duane M. Hamilton

HAMILTON WINS FINAL REMAND FROM BIA FOR MEXICAN ALIEN

The Board of Immigration Appeals (BIA), on July 13, 2012, ordered the final remand down to the Immigration Court in the case of an alien from Mexico who had been ordered deported many years ago under the representation of other counsel.  Hamilton had initially launched several multi-theoried efforts to reopen the alien's proceedings in various immigration tribunals, leading to a 9th Circuit Court of Appeals Petition for Review which was granted and in which the case was ultimately remanded by the 9th Circuit, to the BIA, in March 2012.

This final remand from the BIA to the Court resets the clock for all purposes on this case, and renders the alien eligible to apply for any and all relief which may be available through the Immigration Court.  This case must now work its way back to trial over perhaps as many as two or three years.

The firm is looking forward to continuing the quest on this client's behalf.

By:  Maria Rangel

MAJOR WIN FOR ALIENS AS OBAMA IMPLEMENTS KEY INTENTIONS OF DREAM ACT

This post does not constitute legal advice or direction.  Aliens seeking immigration benefits should always consult with an immigration attorney regarding their specific matters prior to applications for benefits.

President Obama's Department of Homeland Security (DHS) announced this morning that through its prerogative of "Prosecutorial Discrition, " it will no longer seek deportation of, and will provide a work permits for, aliens who meet the following criteria:

1.  Alien must have come to the United States under the age of sixteen;
2.  Alien has continuously resided in the United States for at least five years preceding June 15, 2012;
3.  Alien must currently be in school, or must have graduated from high school, or obtained a general education development (GED) certificate, or must be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
4.  Alien must not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
5.  Alien must not be above the age of thirty.

This new policy applies to aliens who are encountered by Immigration Enforcement officials in the field, aliens who are in Removal Proceedings, but not yet the subject of a final order of removal, and aliens not currently in removal proceedings, who all meet the above criteria.

USCIS has been directed to begin implementation of various processes relevant to this general policy within the next 60 days.

Aliens however, should understand that what is being reported in the news about this policy, often does not cover the entirety of the policy memorandum which sets the policy in motion.  Aliens who have final orders of removal and criminal records of any kind should consult with an immigration attorney.  Further, it would be wise for any alien contemplating this benefit to first seek consultation with their immigration lawyer.

Immigration attorneys themselves will be reviewing the policy memorandum and making sense of how the policy may be applied.  Chow & Hamilton will now be undertaking a comprehensive review of its active cases to determine who among its existing clients may qualify and/or pursue this benefit.

By:  Duane M. Hamilton

KENYAN KALENJIN GRANTED ASYLUM BY LOS ANGELES IMMIGRATION JUDGE

Attorney Hamilton completed an asylum trial this morning (on behalf of a Kalenjin Tribe member from Kenya), which has been pending for the past 7 years.  In addition to the applicant's compelling testimony, in this case, Hamilton successfully presented law and argument as to why a previous non-lawyer's untimely filing of the initial asylum claim should be forgiven such that the case might survive the strict one-year filing requirment. 

Due to the backlog of immigration cases in the Los Angeles Immigration Court, the alien and Mr. Hamilton appeared and were ready for trial five or more times, only to be told that the Court could not hear the case on those particular days. 

We are happy however, to announce that thanks to the patience of our client, the merits of the case itself and the good graces of Immigration Judge Bass and the government's lawyer, the asylum matter was approved and deemed final due to the government's election not reserve appeal.

We congratulate this applicant and the applicant's family in this very difficult and lengthy matter.

By: Maria Rangel

ATTORNEY HAMILTON SECURES LPR CANCELLATION OF REMOVAL FOR ALIEN IN MANDATORY DETENTION

On May 22, 2012, Attorney Hamilton tried his first Lawful Permanent Resident (LPR) Cancellation of Removal case for the year 2012, via Tele-Video, before Immigration Judge (IJ) Walsh of the Los Angeles Immigration Court.  In this case, the alien had been detained since March of 2012, following a conviction for a relatively minor offense.  However, the alien's past criminal history, including convictions related to controlled substances, precluded bond for the alien.

LPR Cancellation is a special type of waiver, which allows certain LPRs who are deemed removable from the United States (usually based upon criminal convictions which trigger removability) to remain in the U.S., retaining their LPR status.  Aliens convicted of controlled substance related crimes and aliens classified as Aggravated Felons under immigration law, generally find themselves unable to receive bond from immigration detention and must take their cases to trial while in detention.  These cases are placed on an expedited schedule by the Immigration Court and are sometimes brought to trial in a matter of weeks as opposed to the years of litigation taken in non-detained cases.  Both attorney and clients are challenged in these cases since the documentation and trial preparation process is so significantly accelerated.

Aliens granted LPR Cancellation may be released from immigration detention as early as the same day their applications are approved.

We are happy to announce that after extensive testimony by the alien and proffers of testimony of witnesses in the case by Attorney Hamilton, the alien was granted LPR Cancellation of Removal.

HAMILTON COMPLETES ADJUSTMENT IN DETAINED PETITIONING SPOUSE CASE

In one of his more complex adjustment of status matters in many years, Attorney Hamilton, secured Lawful Permanent Residence for an African alien whose spouse had been in criminal detention during the I-130 Petition phase of the case.

Hamilton began his representation of the alien in mid 2009, after the alien had been placed in Removal Proceedings in Los Angeles, California. Though at first-blush, the alien appeared qualified to adjust through marriage to a US Citizen, this adjustment was made complex by the fact that the US Citizen spouse, at the time, was detained for a protracted period at a certain criminal detention facility. Hamilton sought to reassure the Immigration Judge that an I-130 interview could be conducted by USCIS while the petitioner was detained and then set about the difficult task of actually coordinating such an interview between authorities at the correctional facility and USCIS in LA. Ultimately, after many false starts with USCIS, the I-130 interview was conducted in early 2011 and the I-130 approved days later, while the Petitioner remained incarcerated. Hamilton appeared in person with the alien at the Los Angeles Field Office, while the petitioner testified via phone from the correctional facility.

Following approval of the I-130, Removal Proceedings were terminated to allow USCIS to complete the adjustment of status phase of the case. We are happy to announce that this matter, after certain unexpected developments and added complexities in the adjustment process, was successfully completed this morning by supervising USCIS Officers. The alien received Lawful Permanent Residence in the United States, ending this stressful chapter of the immigration journey.

We are grateful to USCIS for its thoughtfulness and patience in accommodating and fairly adjudicating what was indeed an unusal and challenging set of circumstances.

By: Maria Rangel

IMMIGRATION JUDGE GRANTS GUATEMALAN FAMILY OF THREE ASYLUM IN HAMILTON'S 4TH IMMIGRATION TRIAL OF 2012

In 2004, Attorney Hamilton, embarked upon the representation of a terrified Guatemalan female who had been detained during her arrival, in flight from persecution in her native country. Hamilton represented the alien in her "Credible Fear" interview at Corrections Corporation of America (CCA) in Otay Mesa, California, and quickly secured parole for her from detention.

After 8 years of litigation in this matter, an immigraon trial was conducted on April 2, 2012, in Los Angeles, California, before Immigration Judge (IJ) Parchert. The female applicant was joined by her spouse (presenting his own application for asylum) and minor child, also in the United States without documentation. The case involved the consideration by the IJ of the concept of "past persecution" and the existence and/or continuation of military patrols known as PACS in Guatemala and the transformation of those organizations into "Clandestine Armed Groups" maintaining the ability to persecute and terrorize old enemies. The Guatemalan Human Rights Commission (GHRC) submitted an authoritative country conditions report in support of the family (rebutting a statement offered by US Department of State which attempted to argue for denial of the claim). GHRC's Director, Ms. Kelsey Alford Jones further stated her willingness to testify if necessary.

Upon completion of testimony by both applicants, the IJ was persuaded that past persecution had occurred in the experience of the family, and that the government had not rebutted a presumption that persecution would continue. Asylum was therefore approved for all three family members, bringing their long and hard-fought saga to an end.

Hamilton stated yesterday that it should be known, "though over 90% of our immigration caseload continues to be for aliens from Kenya, we bring the same high degree of effort, scholarship and attention to detail to the work we do from time to time for clients from a number of countries around the world."

Mr. Hamilton is proud to have represented these applicants and to have secured for them the protection they have sought these many years. Hamilton and the applicants have also expressed their sincerest thanks to GHRC, the IJ and to the government's attorney, who graciously waived appeal.

By: Maria Rangel

9TH CIRCUIT COURT OF APPEALS GRANTS HAMILTON'S PETITION FOR REVIEW IN CHAVEZ V. HOLDER

Yesterday, the 9th Circuit Court of Appeals, in the unpublished decision, Chavez v. Holder, No. 09-71480, granted Mr. Hamilton's Petition for Review on behalf of his client, an alien from Mexico, who had been ordered deported many years ago. Though unpublished for legal authoritative purposes, this decision is a public record at the 9th Circuit.

Mr. Hamilton had first motioned the Board of Immigration Appeals (BIA) to reopen the case due to the ineffective assistance of the Petitioner's former counsel. The Board however, ruled against the Petitioner, declining to treat the matter as a motion to reopen (MTR) and arguing essentially, that the Petitioner's time frame in which to make this sort of motion had long expired, with the Petitioner failing to exercise sufficient diligence to discover the ineffectiveness of said previous counsel. Mr. Hamilton had argued however, that the subject time frame for the motion should be "equitably tolled" in light of the previous attorney's ineffective assistance, and that Petitioner had in fact acted with reasonable diligence, given the conduct and representations of her previous counsel.

On Petition for Review at the 9th Circuit, Hamilton argued several theories, including error in the BIA's failure to address the matter as an MTR and the incompleteness of the BIA's initial review of the Petitioner's MTR. The 9th Circuit in its March 14, 2012 decision, cited its own authority that indeed, motions based on ineffective assistance of counsel are most properly treated as motions to reopen, and agreed that the BIA was not complete in its adjudication.

The 9th Circuit in granting the petition for review, has remanded the case to the BIA for further consideration. Undoubtedly there will be further litigation in the BIA towards ultimately getting the matter back to the Immigration Judge, where actual relief applications might be considered.

By: Maria Rangel

HAMILTON SECURES ASYLUM FOR KIKUYU FAMILY OF FOUR IN IMMIGRATION TRIAL

Yesterday, Mr. Hamilton tried his third asylum matter for the year, before Immigration Judge (IJ) Tabaddor of Los Angeles, California. The applicants were a Kenyan Kikuyu family of four, one of whom had faced severe past persecution in Kenya, but had failed to apply for asylum within one year of arrival into the US, as is required by Section 208(a)(2)(B) of the Immigration and Nationality Act. Testimony was presented in the matter and Mr. Hamilton argued a complex two-pronged waiver approach to the one-year filing requirement.

The IJ accepted both of Mr. Hamilton's waiver arguments and the government's prosecutor after cross examination, accepted one. Agreement was thus reached between IJ, prosecutor and Mr. Hamilton that asylum had been established, and each member of the family was granted "Asylee" status on the spot.

Mr. Hamilton is the only attorney to have represented the family and commenced representation in January 2011. This case was litigated and tried in an unusually speedy manner for the Los Angeles Immigration Court, where cases normally pend for well in excess of two years before trial.

We are delighted at this outcome for the family and grateful to the IJ and prosecutor for their participation.

By Maria Rangel.

PRESS RELEASE IN THE MATTER OF ABEL V. STATE OF CALIFORNIA

February 2, 2012

PRESS RELEASE

By: Chow & Hamilton, Lawyers

In the matter of: Abel, et al v. State of California, et al, Riverside Superior Court Case No. RIC 10010507 (CALDOJ/ARCNET Police Shooting - Hemet California)

At approximately 8:30 p.m., on August 26, 2009, on a large and otherwise unremarkable dusty piece of family-owned land in rural Hemet, California, three men - relatives, Shawn Abel, Daniel Hadfield, and Joshua Thacker, left their loved ones, including children, in a trailer home on the property, boarded their own vehicle and drove out to a certain area on the property to investigate the incursion onto the property by an unmarked Chevy Tahoe, which had been seen entering their land without permission earlier that day. The men shared the singular desire to understand the reason for the vehicle's presence on their property and to inform the intruders that such presence was unwelcome and particularly given the Tahoe's high rate of speed as it traveled back and forth on the property's dirt road, endangering the family's children who played regularly on that road. The property in question was clearly and unmistakably identifiable as private property.

As Abel, Hadfield and Thacker's vehicle approached the mysterious Tahoe, they exited their own vehicle, shouting and waiving wildly in an effort to signal the rogue Tahoe to stop. Instead of stopping however, the occupants of the Tahoe unleashed a barrage of gun-fire, driving the three back into their vehicle. The intruding Tahoe, after passing the three startled occupants of the property, maneuvered their vehicle in a sharp u-turn back towards the three, continuing to fire on the men, creating the distinct impression that the occupants of the Tahoe were intent on gunning Abel, Hadfield and Thacker down. A high speed chase then ensued, snaking its way off of the property and onto the streets of Hemet, until the intruders broke their pursuit.

In the melee, Abel sustained a nearly fatal gunshot wound. The three diverted desperately to a local hospital where he was immediately admitted with extensive injuries which would change his existence forever. These three unsuspecting and innocent men, and their family members who remained at home during the course of the incident, but heard and understood the grave nature of the shooting which was taking place outside, have been deeply injured and traumatized by this vicious and unexplained event.

Were the intruders assassins? gangsters on a rampage? or drug traffickers who had simply selected the wrong piece of property for their illicit activities? The disturbing answer is, none of the above, since they are revealed to have been peace officers sworn to serve and protect as members of the California Department of Justice Joint Task-force known as ARCNET, who were operating clandestinely on the property in question, in a surveillance operation related to a neighboring property. Abel, Hadfield and Thacker were simply in the wrong place at the wrong time on their own property, and apparently in "contempt of cop" for daring to inquire as to why an unmarked, unauthorized vehicle, without sirens should operate with reckless abandon on their property.

It is undisputed that none of the occupants of the property on which the shooting took place were involved in any wrongdoing, and were not the subject of any ARCNET or other law enforcement investigation or warrants. Indeed, none of the three have been charged or accused of any crime.

A lawsuit on behalf of Abel and other family members was filed on May 27, 2010 in Riverside Superior Court by Attorneys Peter Chow & Duane M. Hamilton of Chow & Hamilton, Lawyers, Fullerton, California, Case No. RIC 10010507, seeking an as yet indeterminate amount of damages for multiple plaintiffs, and naming the State of California and the California Department of Justice as defendants. The complaint was amended on March 9, 2011, and this litigation remains pending.

In the course of discovery, the plaintiffs have learned that since the shooting, one of the task force officers involved in the shooting (a seven and a half year veteran of the DOJ), is now inexplicably, no longer employed by that agency as of October 31, 2009, a mere two and a half months after the incident.

This case and its underlying story raise troubling questions which are yet to be resolved as to the extent to which law enforcement may operate unannounced and without a warrant, or the permission of the occupants, on the private lands of ordinary and innocent members of the community. It appears that a shoot first and ask questions later attitude (if not an outright attempt on the lives of the three primary victims) prevailed in the actions of the task force members involved in this tragic and life altering event.

The plaintiffs desire for the State's timely admission of responsibility and a meaningful explanation of the shooting, along with some gesture at remedying this wrong, has thus far, been met with cold and unapologetic legal process by the State.

Chow & Hamilton continue to vigorously pursue this important case on behalf of the Plaintiffs.

Chow & Hamilton may be contacted at: 285 Imperial Highway, Ste. 207
Fullerton, California, 92835
Phone (714)441-3400
Fax (714)441-3407
e-mail: chwhmltn@aol.com

HAMILTON SECURES PERMANENT IMMIGRATION STATUS FOR KENYANS IN FIRST TWO REMOVAL TRIALS OF THE YEAR 2012

On January 24th and 25th 2012, Attorney Hamilton tried his first two removal cases for the year.

In the first, on the 24th, asylum was granted by Immigration Judge (IJ) Monica Little of the Los Angeles Immigration Court, to a Taita torture victim. The asylum claim was granted in spite of the complexities presented by the alien's failure to apply within one year as is generally required in asylum law. Mr. Hamilton is the only attorney to have represented the alien and has been with the case since its inception in early 2008.

In the second, on the 25th, Judge Tara Naselow-Nahas of Los Angeles, granted a Kikuyu the Relief of Non LPR Cancellation of Removal, awarding the alien outright lawful permanent resident (green-card) status. Mr. Hamilton took this case over from another attorney in its very early stages in mid 2010.

By: Maria Rangel