I am pleased to announce the formation of my new blog and practice - the LAW OFFICES OF DUANE M. HAMILTON, which has been in effect since May 1, 2015, and will continue to be located at 285 Imperial Highway, Suite 207, Fullerton, California, 92835. To pave the way for the maintanence of separate practices, Attorney Peter C. Chow and I have terminated CHOW & HAMILTON and transitioned to two independent law offices maintaining an "of counsel" relationship. Attorney Chow is also continuing in his practice at the Imperial Highway, Fullerton address.
We have planned and executed our transition to avoid disruptions in the familiar processes and office environment to which our clients have become accustomed.
Attorney Chow and I continue to maintain our joint blogger account of which the present blog is a part.
By: Duane M. Hamilton
Sunday, May 3, 2015
Thursday, December 11, 2014
LAS VEGAS, IMMIGRATION JUDGE GRANTS ATTORNEY HAMILTON'S MOTION TO REOPEN CASE OF A KENYAN ORDERED REMOVED IN OCTOBER 2009
Once again, I have been called upon to attempt to reopen the case of a Kenyan with a longstanding order of "Removal" (this time an October 2009 Removal order of an immigration judge in Las Vegas Nevada). Our Motion to Reopen (MTR) was filed in October 2014, and we received the decision of the Immigration Judge today, granting the requested reopening.
An alien in this situation is often filled with hopelessness and fear, and more often than not, the finality of the removal order relegates him or her to a category of cases that are among the most challenging for an immigration attorney to remedy. Yet, in this particular case, conditions in Kenya specific to the particular alien demanded (in my modest opinion) that the alien be given an opportunity for his day in Court regarding recently developing matters in Kenya with specific bearing on said alien's life and liberty in that country.
We are grateful that Immigration Judge Romig of the Las Vegas Immigration Court interpreted these particular facts as my client and I, and has mercifully allowed the Client to proceed to trial on certain relief applications, which if granted, might provide a pathway for the alien to US Citizenship.
By: Duane M. Hamilton, Esq.
An alien in this situation is often filled with hopelessness and fear, and more often than not, the finality of the removal order relegates him or her to a category of cases that are among the most challenging for an immigration attorney to remedy. Yet, in this particular case, conditions in Kenya specific to the particular alien demanded (in my modest opinion) that the alien be given an opportunity for his day in Court regarding recently developing matters in Kenya with specific bearing on said alien's life and liberty in that country.
We are grateful that Immigration Judge Romig of the Las Vegas Immigration Court interpreted these particular facts as my client and I, and has mercifully allowed the Client to proceed to trial on certain relief applications, which if granted, might provide a pathway for the alien to US Citizenship.
By: Duane M. Hamilton, Esq.
Friday, November 21, 2014
THE PRESIDENT ANNOUNCES HIS HISTORIC NEW IMMIGRATION REFORM PLAN
So here it is, the end of the year reforms that President Obama has been promising, and announced yesterday evening in what I am sure will be go down as a historic address. Before I reproduce USCIS's announcement discussing the President's executive action, I must make it clear that he is within his rights as the President to exercise "deferred action," and to interpret administrative case law to administer the immigration laws of the United States.
There is no impeachable "crime" or "misdemeanor" here, and individuals who speak in these terms, do so without a grounding in our nation's immigration laws or a true understanding of our Constitution (though these folks love to speak in general terms of the President's supposed Constitutional violations). Usually when they are challenged as to how precisely the President has violated the Constitution, they are at a loss for an explanation, and sheepishly admit that they are merely repeating what they heard on FOX News, or on some conservative talk radio program.
"Deferred action is a long-standing form of administrative relief, originally known as "nonpriority enforcement status." It is one of many forms of prosecutorial discretion available to the Executive Branch. A grant of deferred action can have any of several effects, depending on the timing of the grant. It can prevent an individual from being placed in removal proceedings, suspend any proceedings that have commenced, or stay the enforcement of any existing removal order. It also makes the recipient eligible to apply for employment authorization. General authority for deferred action exists under Immigration and Nationality Act (INA) § 103(a), 8 U.S.C. § 103(a), which grants the Secretary of Homeland Security the authority to enforce the immigration laws. Though no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at least 1971. Federal courts have acknowledged the existence of this executive power at least as far back as the mid-1970s. [Letter, "re: Executive authority to grant administrative relief for DREAM Act beneficiaries,"5/28/12]" See: http://mediamatters.org/research/2014/11/13/right-wing-media-wrong-about-the-legality-of-th/201553;
As recently as 2012, in Arizona v. United States, 567 U.S. __ (2012), the U.S. Supreme Court stated the following:
"Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. It also operates the Law Enforcement Support Center, which provides immigration status information to federal, state, and local officials around the clock."
In fact, the first recipient of presidential deferred action was the Beatles' John Lennon [see http://www.pbs.org/newshour/rundown/you-may-say-hes-a-dreamer-john-lennons-immigration-case/]. Lenon's battle in the 70s to avoid deportation was a landmark event in the history of our country's immigration policies, which most of those who so readily profess to understand the President's Constitutional and Immigration prerogatives, know nothing of. They have no understanding of.what "deferred action" is, and how the President and his AG have historically and lawfully exercised discretionary and interpretive immigration powers without Congressional action. In fact, of Lennon, "you might say [he'] a 'Dreamer,' but [he's] not the only one..."
I encourage debate in this regard, but would also encourage those who are engaging in this debate to acquire as much facts and an understanding of the law, before taking very hard and more often than not, erroneous positions, born of nothing more than emotion or animus towards this particular President.
My feeling is that President Obama is on the right side of history in this, as were Martin Luther King, Jr., Malcom X, Frederick Douglas, Cesar Chavez, etc. in their own struggles.
Additionally, many aliens will find that their hopes are not realized in the program which I will republish below. HOWEVER, CONSULTATION WITH AN IMMIGRATION ATTORNEY FOR ALL WHO ARE CONSIDERING DEFERRED ACTION, OR FEEL THEY MIGHT NOT QUALIFY IS EXTREMELY IMPORTANT. DACA (for the "Dreamers" and for the President's new expanded Deferred Action program), are not the only forms of Prosecutorial Discretion which might result in the alien's ability to remain in the United States. IN FACT READERS OF THIS BLOG SHOULD REFER BACK TO ANY ARTICLE IN WHICH I DISCUSS PROSECUTORIAL DISCRETION OR "PD" TO DISCOVER THAT MY CLIENTS HAVE BEEN BENEFITING FROM ANOTHER FORM OF PD WHICH ALLOWS THEM TO REMAIN IN THE U.S. OUTSIDE OF DACA AND THIS NEW PROGRAM. PROSECUTORIAL DISCRETION THROUGH THE IMMIGRATION COURT IS KNOWN TO THOSE OF US WHO LITIGATE IMMIGRATION CASES, BUT REQUIRES A BODY OF VERY SPECIALIZED EXPERIENCE TO ASSESS AND PURSUE. PD WHICH IS ACQUIRED IN IMMIGRATION COURT IS NOT A SECRET AMNESTY, AND LIKE THE DACA PROGRAM AND THE PRESIDENT'S NEW PROGRAM, DOES NOT LEAD TO IMMIGRATION STATUS, BUT WOULD ALLOW THE ALIEN TO REMAIN IN THE U.S. AND IN MANY CASES, TO RENEW A WORK PERMIT INDEFINITELY IN THE U.S.
BELOW IS THE VERBATIM ANNOUNCEMENT OF USCIS IN REGARD TO THE PRESIDENT'S NEW DEFERRED ACTION PROGRAM. THIS PROVIDES EVERYTHING YOU NEED TO KNOW AT THE MOMENT IN THIS REGARD (AND ANY GOSSIP REGARDING A SECRET AMNESTY WHICH SOME INDIVIDUAL IN A BACK ROOM SOMEWHERE KNOWS ABOUT, SHOULD BE THOROUGHLY DISREGARDED).
To the extent that the announcements below are difficult to understand, contact me or other immigration counsel immediately to schedule a consultation for further explanation.
There is no impeachable "crime" or "misdemeanor" here, and individuals who speak in these terms, do so without a grounding in our nation's immigration laws or a true understanding of our Constitution (though these folks love to speak in general terms of the President's supposed Constitutional violations). Usually when they are challenged as to how precisely the President has violated the Constitution, they are at a loss for an explanation, and sheepishly admit that they are merely repeating what they heard on FOX News, or on some conservative talk radio program.
"Deferred action is a long-standing form of administrative relief, originally known as "nonpriority enforcement status." It is one of many forms of prosecutorial discretion available to the Executive Branch. A grant of deferred action can have any of several effects, depending on the timing of the grant. It can prevent an individual from being placed in removal proceedings, suspend any proceedings that have commenced, or stay the enforcement of any existing removal order. It also makes the recipient eligible to apply for employment authorization. General authority for deferred action exists under Immigration and Nationality Act (INA) § 103(a), 8 U.S.C. § 103(a), which grants the Secretary of Homeland Security the authority to enforce the immigration laws. Though no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at least 1971. Federal courts have acknowledged the existence of this executive power at least as far back as the mid-1970s. [Letter, "re: Executive authority to grant administrative relief for DREAM Act beneficiaries,"5/28/12]" See: http://mediamatters.org/research/2014/11/13/right-wing-media-wrong-about-the-legality-of-th/201553;
As recently as 2012, in Arizona v. United States, 567 U.S. __ (2012), the U.S. Supreme Court stated the following:
"Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. It also operates the Law Enforcement Support Center, which provides immigration status information to federal, state, and local officials around the clock."
In fact, the first recipient of presidential deferred action was the Beatles' John Lennon [see http://www.pbs.org/newshour/rundown/you-may-say-hes-a-dreamer-john-lennons-immigration-case/]. Lenon's battle in the 70s to avoid deportation was a landmark event in the history of our country's immigration policies, which most of those who so readily profess to understand the President's Constitutional and Immigration prerogatives, know nothing of. They have no understanding of.what "deferred action" is, and how the President and his AG have historically and lawfully exercised discretionary and interpretive immigration powers without Congressional action. In fact, of Lennon, "you might say [he'] a 'Dreamer,' but [he's] not the only one..."
I encourage debate in this regard, but would also encourage those who are engaging in this debate to acquire as much facts and an understanding of the law, before taking very hard and more often than not, erroneous positions, born of nothing more than emotion or animus towards this particular President.
My feeling is that President Obama is on the right side of history in this, as were Martin Luther King, Jr., Malcom X, Frederick Douglas, Cesar Chavez, etc. in their own struggles.
Additionally, many aliens will find that their hopes are not realized in the program which I will republish below. HOWEVER, CONSULTATION WITH AN IMMIGRATION ATTORNEY FOR ALL WHO ARE CONSIDERING DEFERRED ACTION, OR FEEL THEY MIGHT NOT QUALIFY IS EXTREMELY IMPORTANT. DACA (for the "Dreamers" and for the President's new expanded Deferred Action program), are not the only forms of Prosecutorial Discretion which might result in the alien's ability to remain in the United States. IN FACT READERS OF THIS BLOG SHOULD REFER BACK TO ANY ARTICLE IN WHICH I DISCUSS PROSECUTORIAL DISCRETION OR "PD" TO DISCOVER THAT MY CLIENTS HAVE BEEN BENEFITING FROM ANOTHER FORM OF PD WHICH ALLOWS THEM TO REMAIN IN THE U.S. OUTSIDE OF DACA AND THIS NEW PROGRAM. PROSECUTORIAL DISCRETION THROUGH THE IMMIGRATION COURT IS KNOWN TO THOSE OF US WHO LITIGATE IMMIGRATION CASES, BUT REQUIRES A BODY OF VERY SPECIALIZED EXPERIENCE TO ASSESS AND PURSUE. PD WHICH IS ACQUIRED IN IMMIGRATION COURT IS NOT A SECRET AMNESTY, AND LIKE THE DACA PROGRAM AND THE PRESIDENT'S NEW PROGRAM, DOES NOT LEAD TO IMMIGRATION STATUS, BUT WOULD ALLOW THE ALIEN TO REMAIN IN THE U.S. AND IN MANY CASES, TO RENEW A WORK PERMIT INDEFINITELY IN THE U.S.
BELOW IS THE VERBATIM ANNOUNCEMENT OF USCIS IN REGARD TO THE PRESIDENT'S NEW DEFERRED ACTION PROGRAM. THIS PROVIDES EVERYTHING YOU NEED TO KNOW AT THE MOMENT IN THIS REGARD (AND ANY GOSSIP REGARDING A SECRET AMNESTY WHICH SOME INDIVIDUAL IN A BACK ROOM SOMEWHERE KNOWS ABOUT, SHOULD BE THOROUGHLY DISREGARDED).
To the extent that the announcements below are difficult to understand, contact me or other immigration counsel immediately to schedule a consultation for further explanation.
Executive Actions on Immigration
On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
These initiatives include:
- Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years | Details
- Allowing parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks | Details
- Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens | Details
- Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs | Details
- Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee | Details
Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. Subscribe to this page to get updates when new information is posted.
|
|---|
Next steps
USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.
Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative.
While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish your:
- Identity;
- Relationship to a U.S. citizen or lawful permanent resident; and
- Continuous residence in the United States over the last five years or more.
We strongly encourage you to subscribe to receive an email whenever additional information on these initiatives is available on our website. We will also post updates onFacebook and Twitter.
Share this page with your friends and family members. Remind them that the only way to be sure to get the facts is to get them directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, go to the Avoid Scamspage.
Below are summaries of major planned initiatives by USCIS, including:
- Who is eligible
- What the initiative will do
- When you can begin to make a request
- How to make a request
| 1. Deferred Action for Childhood Arrivals (DACA) program | |
|---|---|
| Who |
|
| What |
|
| When |
|
| How |
|
| 2. Deferred action for parents of U.S. citizens and lawful permanent residents | |
|---|---|
| Who |
|
| What |
Notes: USCIS will consider each request for Deferred Action for Parental Accountability (DAPA) on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats.
|
| When |
|
| How |
|
| 3. Provisional waivers of unlawful presence | |
|---|---|
| Who |
|
| What |
Notes: Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver if a visa is available. For more information about the waivers program, go to the Provisional Unlawful Presence Waivers page which will be updated over the next several months.
|
| When |
|
| How |
|
| 4. Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs | |
|---|---|
| Who |
|
| What |
USCIS will:
|
| When |
|
| How |
|
| 5. Promote the naturalization process | |
|---|---|
| Who |
|
| What |
|
| When |
|
| How |
|
Key Questions and Answers
Q1: When will USCIS begin accepting applications related to these executive initiatives?
A1: While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes factors such as their:
- Identity;
- Relationship to a U.S. citizen or lawful permanent resident; and
- Continuous residence in the United States over the last five years or more.
USCIS expects to begin accepting applications for the:
- Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and
- Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement.
Others programs will be implemented after new guidance and regulations are issued.
We strongly encourage you to subscribe to receive an email whenever additional information is available on the USCIS website. Remember that the only way to get official information is directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services.
Q2: How many individuals does USCIS expect will apply?
A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.
Q3: Will there be a cutoff date for individuals to apply?
A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.
Q4: How long will applicants have to wait for a decision on their application?
A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.
Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives?
A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.
Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?
A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months.
Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?
A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name, and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.
In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.
Q8: What if someone’s case is denied or they fail to pass a background check?
A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.
Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?
A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.
Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?
A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:
- Assisting in the consideration of the deferred action request;
- To identify or prevent fraudulent claims;
- For national security purposes; or
- For the investigation or prosecution of a criminal offense.
This policy covers family members and guardians, in addition to you.
Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?
A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services. For information on the existing parole-in-place policy for military personnel, please read this policy memorandum.
Glossary
- Continuous residence: For a detailed explanation, go to the USCIS Policy Manual, Chapter 3: Continuous Residence.
- DACA: Deferred Action for Childhood Arrivals, a program launched in 2012. For more information, go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page.
- Deferred action: A use of prosecutorial discretion to not remove an individual from the country for a set period of time, unless the deferred action is terminated for some reason. Deferred action is determined on a case-by-case basis and only establishes lawful presence but does not provide immigration status or benefits of any kind. DACA is one type of deferred action.
- Prosecutorial discretion: The legal authority to choose whether or not to take action against an individual for committing an offense.
- Provisional waiver: Waiver for individuals who are otherwise inadmissible due to more than 180 days of unlawful presence in the United States, based on a showing of extreme hardship to certain U.S. citizen or lawful permanent resident family members, which allows the individual to return after departure for an immigrant visa interview at a U.S. embassy or consulate. For more information, go to the Provisional Unlawful Presence Waivers page.
Monday, November 17, 2014
END OF THE YEAR IMMIGRATION REFORM?
I have been taking calls for the past couple of weeks from clients and prospective clients asking me whether I believe that an "amnesty" is going to be passed into law by the end of 2014. Given all of the discussion which has been taking place in the media recently regarding immigration reform, I will attempt to weigh in for what its worth.
Amnesty is probably not the correct word to describe what President Obama appears to be contemplating in regard to immigration reform. Traditionally, in the U.S., an amnesty has been a vehicle by which undocumented aliens go from their undocumented status to some form of lawful temporary or permanent resident status. Presently, there does not appear to be the political will for such a bold measure, and the Democrats and Republicans (who would have to come to a meeting of the minds on this issue) are very far apart. It is for this reason, that the President is attempting to go it alone, but in doing so, finds himself significantly limited in what he might accomplish.
The President can issue executive orders in carrying out his traditional functions (which include the enforcement and administration of the nation's immigration laws). The Deferred Action for Childhood Arrivals (DACA) program is a prime example of the President acting unilaterally, but lawfully, to ease the burdens and fears of young people who have grown up undocumented in America, by ushering them into some sense of normalcy and security. The President, through his Attorney General (AG) may also interpret or re-interpret immigration case law, which has a tremendous impact on how certain applications for immigration relief are interpreted and adjudicated. He is not overstepping or (Lord Help us) committing any impeachable offenses in carrying out these functions. The Prosecutorial Discretion (PD) which under President Obama has been exercised to re-prioritize the nation's removal priorities (placing criminal aliens at the top of the list for removal and non-criminal aliens with children or other immediate family members born in the US or who are Lawful Permanent Residents at the bottom of that list) has been exercised to some extent by prior presidents.
It looks like the President will attempt to expand PD to perhaps the parents of DACA recipients and/or other non-criminal aliens who have US born children (or other very close family members) and who have resided in the U.S. for the past five years. However, I cannot claim to know precisely what the President has in mind. Even in the event that this sort of benefit is given to undocumented aliens, it is a far cry from lawful status or permanent residence. All the President seems to be proposing is the issuance of employment authorization documents for such eligible aliens. They are not being placed on a pathway to Citizenship by these sorts of limited discretionary actions.
Further, whatever the Presidential action is, it will certainly exclude criminal aliens and other perceived bad actors. For example, DACA is not available to aliens with even one DUI. Hence, there will be a multitude of undocumented aliens who will not qualify. There may also be the risk of triggering Removal proceedings for individuals who apply for such relief, fail to qualify, and remain removable. Aliens will have to ensure that their efforts to benefit from a new Presidential policy does not have the unintended consequence of triggering their removal from the US.
Further, aliens who are seeking immigration status and a pathway to US Citizenship may not have their objectives met in this sort of executive relief and will need to pursue other lawful avenues to meet those objectives. Additionally, aliens in the US for a period or periods short of the qualifying period, would likely be denied relief.
Aliens should continue to vigorously pursue immigration relief that has been identified as available to them at present and conduct an analysis as to how their particular circumstances relate to any executive action taken in the near future by the President.
I will be watching developments closely as we approach the end of the year and will be advising my clients accordingly as concrete announcements are made by the President.
By: Duane M. Hamilton
Amnesty is probably not the correct word to describe what President Obama appears to be contemplating in regard to immigration reform. Traditionally, in the U.S., an amnesty has been a vehicle by which undocumented aliens go from their undocumented status to some form of lawful temporary or permanent resident status. Presently, there does not appear to be the political will for such a bold measure, and the Democrats and Republicans (who would have to come to a meeting of the minds on this issue) are very far apart. It is for this reason, that the President is attempting to go it alone, but in doing so, finds himself significantly limited in what he might accomplish.
The President can issue executive orders in carrying out his traditional functions (which include the enforcement and administration of the nation's immigration laws). The Deferred Action for Childhood Arrivals (DACA) program is a prime example of the President acting unilaterally, but lawfully, to ease the burdens and fears of young people who have grown up undocumented in America, by ushering them into some sense of normalcy and security. The President, through his Attorney General (AG) may also interpret or re-interpret immigration case law, which has a tremendous impact on how certain applications for immigration relief are interpreted and adjudicated. He is not overstepping or (Lord Help us) committing any impeachable offenses in carrying out these functions. The Prosecutorial Discretion (PD) which under President Obama has been exercised to re-prioritize the nation's removal priorities (placing criminal aliens at the top of the list for removal and non-criminal aliens with children or other immediate family members born in the US or who are Lawful Permanent Residents at the bottom of that list) has been exercised to some extent by prior presidents.
It looks like the President will attempt to expand PD to perhaps the parents of DACA recipients and/or other non-criminal aliens who have US born children (or other very close family members) and who have resided in the U.S. for the past five years. However, I cannot claim to know precisely what the President has in mind. Even in the event that this sort of benefit is given to undocumented aliens, it is a far cry from lawful status or permanent residence. All the President seems to be proposing is the issuance of employment authorization documents for such eligible aliens. They are not being placed on a pathway to Citizenship by these sorts of limited discretionary actions.
Further, whatever the Presidential action is, it will certainly exclude criminal aliens and other perceived bad actors. For example, DACA is not available to aliens with even one DUI. Hence, there will be a multitude of undocumented aliens who will not qualify. There may also be the risk of triggering Removal proceedings for individuals who apply for such relief, fail to qualify, and remain removable. Aliens will have to ensure that their efforts to benefit from a new Presidential policy does not have the unintended consequence of triggering their removal from the US.
Further, aliens who are seeking immigration status and a pathway to US Citizenship may not have their objectives met in this sort of executive relief and will need to pursue other lawful avenues to meet those objectives. Additionally, aliens in the US for a period or periods short of the qualifying period, would likely be denied relief.
Aliens should continue to vigorously pursue immigration relief that has been identified as available to them at present and conduct an analysis as to how their particular circumstances relate to any executive action taken in the near future by the President.
I will be watching developments closely as we approach the end of the year and will be advising my clients accordingly as concrete announcements are made by the President.
By: Duane M. Hamilton
Thursday, October 30, 2014
TWO MORE KENYAN APPELLATE SUCCESS STORIES
On September 30, 2014, the Board of Immigration Appeals (BIA) remanded a case which we appealed in early 2013 related to the trial judge's refusal to allow an expert witness to testify telephonically, in spite of the fact that the expert had expressed her willingness to appear via phone and our client expressed that an inability to afford to pay for the expert to travel from Orange County to court in San Diego. Our client had been granted another form of relief which would allow the client to remain in the US, however, the more desirable relief application had been denied due to the judge's failure to understand matters which would have been clarified by the expert. Our client's case is now back before the trial judge for another opportunity at the more desirable form of relief.
On October 14, 2014, the BIA remanded to the trial court, a case which we had appealed all the way to the Eighth Circuit Court of Appeals and had been remanded by the Eighth Circuit to the BIA. In that case, we had represented the client in a Motion to Reopen (MTR) trial court Removal Proceedings wherein the client had previously been represented by a prior attorney and all relief applications denied. This client will now have an opportunity to convince the trial judge to grant a new application for relief and perhaps consider other forms of relief which might not have been available at the first trial.
We are gratified by these results and encouraged at the new opportunities these clients have been given by the BIA.
By: Duane M. Hamilton
On October 14, 2014, the BIA remanded to the trial court, a case which we had appealed all the way to the Eighth Circuit Court of Appeals and had been remanded by the Eighth Circuit to the BIA. In that case, we had represented the client in a Motion to Reopen (MTR) trial court Removal Proceedings wherein the client had previously been represented by a prior attorney and all relief applications denied. This client will now have an opportunity to convince the trial judge to grant a new application for relief and perhaps consider other forms of relief which might not have been available at the first trial.
We are gratified by these results and encouraged at the new opportunities these clients have been given by the BIA.
By: Duane M. Hamilton
Thursday, September 18, 2014
CASE OF ASYLUM APPLICANT ACCUSED OF DOCUMENT FRAUD ENDS IN A GRANT OF PROSECUTORIAL DISCRETION
Yesterday, I appeared before the Honorable Immigration Judge, Ignacio Fernandez, of the San Diego, Immigration Court, for what had promised to be an exciting, complex and intriguing showdown with ICE Chief Counsel over their allegation of document fraud against a Kenyan asylum seeker, based upon what both myself and the IJ viewed as an inconclusive Forensic Document Lab (FDL) report on certain documents which the applicant had submitted in support of the asylum claim. A class of law students from Thomas Jefferson Law School had been invited by the IJ to observe the nuanced arguments which would have to be made by both sides in order to promote their competing interests.
Oringinally, this case had been tried by me, and asylum granted by IJ Fernandez, in June of 2009, in spite of the FDL report. ICE then timely appealed, and the applicant was forced to retain me to represent him before the Board of Immigration Appeals (BIA). In November of 2010, the BIA remanded the case to IJ Fernandez for further proceedings, to give ICE another opportunity to attempt to discredit the applicant's supporting documents by presenting the testimony of the FDL document examiner who had prepared the inconclusive report. The Applicant diligently provided a number of rebuttal documents to demonstrate the legitimacy of the documents which were submitted in the case, and I again demanded the CV of the document examiner which had never been provided, arguing that the applicant's due process would be violated where the qualifications of the examiner are not provided prior to trial.
In November of 2013, believing that a compromise had been reached with ICE to grant the applicant withholding of removal (a lesser form of humanitarian relief than asylum) my partner, Peter Chow appeared before the IJ for the simple formality of receiving the grant of withholding. However, at the hearing, ICE counsel stated that she had not received authorization from her superiors to agree to this offer and that she was required to contest all humanitarian relief at trial. This left both IJ Fernandez and Mr. Chow stunned, believing that a deal had been made for withholding (due to absolute emotional exhaustion of the applicant after years of litigation). The matter was thus, reset for trial on September 17, 2014.
In May of 2014, I requested Administrative Closure in an Exercise of Prosecutorial Discretion (PD), which would yield a similar result to withholding of removal and spare my client the strain of yet another trial. I had no doubt as to the merits of my client's claim, but believed that though we would prevail again at trial, we would have to contend with yet a further ICE appeal. ICE almost immediately rejected my offer to compromise the matter with PD, demonstrating their intent to conduct a further trial of the matter.
This is an interesting circumstance for a litigation attorney. On the one hand, you are confident that your preparation is sufficient to contend with the government's allegations. You believe your client's explanations of the circumstances both underlying the case and documentation supporting the case, and the great weight of evidence and law appears to be on the client's side. Yet the client is fatigued and there is the promise of additional years of litigation even if the judge grants the requested relief.
As a pure intellectual pursuit you simply wish to vindicate the client and prevail once again at trial. However, as a practical matter, you believe that this particular human being is simply at the limit. The only option here, however, appeared to be to prepare for an aggressive contested hearing on September 17, 2014, and worry later about the client's emotions and ability to litigate further in the event of a government appeal.
On the morning of September 2014, however, I stopped by my office to pick up the case file and start my long drive to San Diego for trial at 1:00 p.m.. Upon arrival at the office a message from a senior attorney at ICE, Mr. Watts awaited me. I immediately returned his call and he informed me that he had personally reviewed the case and believed that PD would in fact be a reasonable compromise if my client would accept. The client of course had released me to accept PD as an acceptable way to protect the client's life by preventing removal to Kenya, and avoiding the nightmare of perpetual litigation against a government with unlimited resources to keep the matter going indefinitely.
And so, yesterday at 1:00 p.m., the IJ announced to a disappointed gallery of law students, that there would be no showdown, and that the parties had quite unceremoniously resolved the case without need for further trial. The client now has the assurance that the government will not pursue removal unless the client breaks the law, and therefore the client may remain in the United States with removal proceedings closed.
Often in these matters, lawyers on both sides are required to put egos and notions of the righteousness of their clients' positions aside to achieve objectives that are most practical for the immediate needs of the clients. This, I am proud to say, was accomplished for this deserving client.
We are relieved that client safety is preserved and having accomplished that, are well satisfied with the outcome.
By: Duane M. Hamilton
Oringinally, this case had been tried by me, and asylum granted by IJ Fernandez, in June of 2009, in spite of the FDL report. ICE then timely appealed, and the applicant was forced to retain me to represent him before the Board of Immigration Appeals (BIA). In November of 2010, the BIA remanded the case to IJ Fernandez for further proceedings, to give ICE another opportunity to attempt to discredit the applicant's supporting documents by presenting the testimony of the FDL document examiner who had prepared the inconclusive report. The Applicant diligently provided a number of rebuttal documents to demonstrate the legitimacy of the documents which were submitted in the case, and I again demanded the CV of the document examiner which had never been provided, arguing that the applicant's due process would be violated where the qualifications of the examiner are not provided prior to trial.
In November of 2013, believing that a compromise had been reached with ICE to grant the applicant withholding of removal (a lesser form of humanitarian relief than asylum) my partner, Peter Chow appeared before the IJ for the simple formality of receiving the grant of withholding. However, at the hearing, ICE counsel stated that she had not received authorization from her superiors to agree to this offer and that she was required to contest all humanitarian relief at trial. This left both IJ Fernandez and Mr. Chow stunned, believing that a deal had been made for withholding (due to absolute emotional exhaustion of the applicant after years of litigation). The matter was thus, reset for trial on September 17, 2014.
In May of 2014, I requested Administrative Closure in an Exercise of Prosecutorial Discretion (PD), which would yield a similar result to withholding of removal and spare my client the strain of yet another trial. I had no doubt as to the merits of my client's claim, but believed that though we would prevail again at trial, we would have to contend with yet a further ICE appeal. ICE almost immediately rejected my offer to compromise the matter with PD, demonstrating their intent to conduct a further trial of the matter.
This is an interesting circumstance for a litigation attorney. On the one hand, you are confident that your preparation is sufficient to contend with the government's allegations. You believe your client's explanations of the circumstances both underlying the case and documentation supporting the case, and the great weight of evidence and law appears to be on the client's side. Yet the client is fatigued and there is the promise of additional years of litigation even if the judge grants the requested relief.
As a pure intellectual pursuit you simply wish to vindicate the client and prevail once again at trial. However, as a practical matter, you believe that this particular human being is simply at the limit. The only option here, however, appeared to be to prepare for an aggressive contested hearing on September 17, 2014, and worry later about the client's emotions and ability to litigate further in the event of a government appeal.
On the morning of September 2014, however, I stopped by my office to pick up the case file and start my long drive to San Diego for trial at 1:00 p.m.. Upon arrival at the office a message from a senior attorney at ICE, Mr. Watts awaited me. I immediately returned his call and he informed me that he had personally reviewed the case and believed that PD would in fact be a reasonable compromise if my client would accept. The client of course had released me to accept PD as an acceptable way to protect the client's life by preventing removal to Kenya, and avoiding the nightmare of perpetual litigation against a government with unlimited resources to keep the matter going indefinitely.
And so, yesterday at 1:00 p.m., the IJ announced to a disappointed gallery of law students, that there would be no showdown, and that the parties had quite unceremoniously resolved the case without need for further trial. The client now has the assurance that the government will not pursue removal unless the client breaks the law, and therefore the client may remain in the United States with removal proceedings closed.
Often in these matters, lawyers on both sides are required to put egos and notions of the righteousness of their clients' positions aside to achieve objectives that are most practical for the immediate needs of the clients. This, I am proud to say, was accomplished for this deserving client.
We are relieved that client safety is preserved and having accomplished that, are well satisfied with the outcome.
By: Duane M. Hamilton
Thursday, July 17, 2014
8th CIRCUIT COURT OF APPEALS REMANDS TO BIA THE CASE OF A KENYAN ORDERED BY IJ TO VOLUNTARILY DEPART IN 2011
My office was hired in mid 2011 to pursue a motion to reopen (MTR) before the Immigration Court, by a citizen an national of Kenya who had been ordered to voluntarily depart the United States by an Immigration Judge in May of 2011. Our MTR highlighted certain "changed circumstances" and conditions in Kenya which we believed warranted reopening.
Our MTR was denied by the IJ in February of 2012, citing a litany of what we believed were impermissibly speculative and conjectural reasons for the denial. Thus, we timely appealed to the BIA, ultimately briefing all of the reasons why the IJ had erred and why the matter should have been reopened and why it should be remanded to the IJ.
In April of 2014, the BIA denied our appeal, sidestepping most of our contentions of error against the IJ and fashioned a new procedural reason for denial, coupled with its impression that our client had set forth "changed personal circumstances," rather than "changed country conditions," to support the MTR.
We then timely appealed via Petition for Review to the 8th Circuit Court of appeals which is the Circuit Court with jurisdiction over cases arising in the immigration court in which this particular case was litigated. In a 47 page brief before to the 8th Circuit, we carefully parsed the alleged procedural error (showing that the BIA had previously decided a substantially similar issue in another of its cases, Matter of J-G-, 26 I&N Dec. 161 (BIA 2013) in much the way we were arguing and in direct conflict with the manner in which the BIA had decided our clients matter). We further argued that in their "changed personal circumstances" verses "changed country conditions" analysis, the BIA failed to consider all of the factors presented by the alien, and distorted important aspects of the claim(s) in violation of Felke v. INS, 118 F.3d 594, 597-598 (8th Cir. 1997) and Kipkemboi v. Holder, 587 F.3d 885, 891 (8th Cir. 2009) among other cases.
On July 14, 2014, counsel for the Department of Justice's Office of Immigration Litigation (OIL) (the attorneys who represent the interests of the administrative immigration agencies in the Federal Circuit Courts) contacted me and informed me that they were in agreement with points made in my brief and were inclined to seek a remand (return of the case) to the BIA for those reasons. That same day, OIL filed its "Unopposed Motion to Remand" with the 8th Circuit, and on July 16, 2014, I filed my client's "Nonopposition" to their motion.
Later, on July 16, 2014, the 8th Circuit entered its "Judgment" remanding our client's matters to the BIA for further proceedings, along with its "Mandate," which makes the judgment of the Court final.
Thus, we have accomplished that which we sought at the 8th Circuit, a downward referral of the case to the BIA due to factors which we believe rendered its initial decision erroneous. Our client must now retain counsel to continue to represent and uphold those interests before the BIA and to seek actual "reopening" of the case and further remand to the IJ.
Reopening of this sort of case is critical for an alien in this type of situation, since an expiration of a voluntary departure, without an actual departure by the alien from the US, converts to a deportation/removal order automatically upon expiration of the voluntary departure period. All administrative immigration agencies which are able to approve immigration applications (including, but not limited to the Immigration Court), in this circumstance, have no jurisdiction over the alien until the alien's case is formally reopened.
The alien is now in an enhanced position to argue for such reopening, given the analysis of not only myself, but of OIL in the matter.
We are respectful of OIL's thoughtfulness and professionalism in this complex case.
By: Duane M. Hamilton, Esq.
Our MTR was denied by the IJ in February of 2012, citing a litany of what we believed were impermissibly speculative and conjectural reasons for the denial. Thus, we timely appealed to the BIA, ultimately briefing all of the reasons why the IJ had erred and why the matter should have been reopened and why it should be remanded to the IJ.
In April of 2014, the BIA denied our appeal, sidestepping most of our contentions of error against the IJ and fashioned a new procedural reason for denial, coupled with its impression that our client had set forth "changed personal circumstances," rather than "changed country conditions," to support the MTR.
We then timely appealed via Petition for Review to the 8th Circuit Court of appeals which is the Circuit Court with jurisdiction over cases arising in the immigration court in which this particular case was litigated. In a 47 page brief before to the 8th Circuit, we carefully parsed the alleged procedural error (showing that the BIA had previously decided a substantially similar issue in another of its cases, Matter of J-G-, 26 I&N Dec. 161 (BIA 2013) in much the way we were arguing and in direct conflict with the manner in which the BIA had decided our clients matter). We further argued that in their "changed personal circumstances" verses "changed country conditions" analysis, the BIA failed to consider all of the factors presented by the alien, and distorted important aspects of the claim(s) in violation of Felke v. INS, 118 F.3d 594, 597-598 (8th Cir. 1997) and Kipkemboi v. Holder, 587 F.3d 885, 891 (8th Cir. 2009) among other cases.
On July 14, 2014, counsel for the Department of Justice's Office of Immigration Litigation (OIL) (the attorneys who represent the interests of the administrative immigration agencies in the Federal Circuit Courts) contacted me and informed me that they were in agreement with points made in my brief and were inclined to seek a remand (return of the case) to the BIA for those reasons. That same day, OIL filed its "Unopposed Motion to Remand" with the 8th Circuit, and on July 16, 2014, I filed my client's "Nonopposition" to their motion.
Later, on July 16, 2014, the 8th Circuit entered its "Judgment" remanding our client's matters to the BIA for further proceedings, along with its "Mandate," which makes the judgment of the Court final.
Thus, we have accomplished that which we sought at the 8th Circuit, a downward referral of the case to the BIA due to factors which we believe rendered its initial decision erroneous. Our client must now retain counsel to continue to represent and uphold those interests before the BIA and to seek actual "reopening" of the case and further remand to the IJ.
Reopening of this sort of case is critical for an alien in this type of situation, since an expiration of a voluntary departure, without an actual departure by the alien from the US, converts to a deportation/removal order automatically upon expiration of the voluntary departure period. All administrative immigration agencies which are able to approve immigration applications (including, but not limited to the Immigration Court), in this circumstance, have no jurisdiction over the alien until the alien's case is formally reopened.
The alien is now in an enhanced position to argue for such reopening, given the analysis of not only myself, but of OIL in the matter.
We are respectful of OIL's thoughtfulness and professionalism in this complex case.
By: Duane M. Hamilton, Esq.
Subscribe to:
Posts (Atom)