HAMILTON OVERCOMES ONE-YEAR FILING BAR IN KENYAN ASYLUM TRIAL

On July 10, 2013, I completed my trial of a Kenyan asylum claim which I have been litigating over the past three years.  One of the critical complexities of the case was whether or not the applicant, who had arrived in the United States many years before filing the asylum claim, would be barred by INA §208(a)(2)(B)'s one year limitation on the filing of such claims.  In this claim, though there was some history which might have suggested a possibility of an asylum claim within one year of the alien's arrival years earlier, we were able to demonstrate such "changed circumstances" as to warrant approval of the asylum claim.

This applicant will become eligible to apply for Lawful Permanent Residence ("green-card") in one year, and Naturalization (U.S. Citizenship) five years after approval of the green card.

The ever thoughtful Immigration Judge, Ignacio Fernandez of San Diego, California presided, with DHS counsel, Adams, also of San Diego, prosecuting.  Because Mr. Adams graciously waived appeal, my client's approval is final.

By:  Duane Hamilton

HAMILTON FILES PETITION FOR REHEARING EN BANC IN LAWRENCE V. HOLDER

On May 22, 2013, I reported on the 9th Circuit's publication of their "Opinion" in Lawrence v. Holder (07-74829) in which a lawful permanent resident (LPR) aggravated felon was determined not to be eligible for INA 212(c) relief because because of the BIA's interpretation (and the Court's deference to that interpretation) of the word "admissions" in IMMACT 511(b).  The interpretation of an "admission" as the 212(c) application itself, rather than the alien's earlier entry after inspection and authorization by an immigration officer" [as the word is defined by 8 U.S.C. §1101(a)(13)(A)] is vexing and in our opinion, worthy of further review.

Hence, on July 3, 2013, we filed a petition for rehearing en banc, seeking a fresh look at the issues in this this matter by at least 11 of the Court's judges.

The current petition  addresses whether IMMACT 511(b) was "unambiguously prospective" pursuant to Ledezma-Galicia v. Holder, 599 F.3d 1055(9th Cir. 2010) to such an extent there was no ambiguity in the statute for the agency to resolve, and whether in applying what is called "Chevron deference" to the agency's interpretation, the panel missed a more subtle traditional requirement in immigration cases that ambiguous statutes be read in the light most favorable to the alien [see INS v. Errico, 385 U.S. 214, 225 (1966) and INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987)].

By:  Duane Hamilton

KENYAN COUPLE GRANTED WITHHOLDING OF REMOVAL AND ADMIN. CLOSURE RESPECTIVELY

On June 19, 2013, a Kenyan couple whom I represented in a removal trial, was granted mixed relief by Immigration Judge Renner of the San Diego, California Immigration Court, following trial of their humanitarian immigration claims.  One spouse was granted withholding of removal, which does not carry automatic derivative status to the other spouse as an asylum approval would, while the other spouse was granted an administrative closure of removal proceedings in the interest of Prosecutorial Discretion (PD).  The humanitarian claims were filed literally decades after the applicants first arrived in the US, and hence their asylum claims were burdened by INA 208(a)(2)(B)'s one-year filing requirement.  Both spouses will now be allowed to remain in the US indefinitely without fear of removal to Kenya.

We are gratified at this very just result and express the clients' gratitude to the Court and DHS counsel, Ms. Mubarakee, for their thoughtulness and humanity in this matter.

By:  Duane Hamilton