Attorney Hamilton is scheduled to argue the case of a Kenyan married couple seeking asylum in the United States, before the 9th Circuit Court of Appeals, in Pasadena, California, on October 7, 2010. He has been pursuing asylum and alternative forms of humanitarian relief on behalf of the aliens in this matter since April of 2002. The 9th Circuit Petition for Review alone (after a subsequent 4 year process in the exhaustion of the Asylum Office, Immigration Court and Board of Immigration Appeals stages) has been litigated over the last four and a half years. Even after arguments before the 9th Cirucit, a decision may remain pending for several months.
This case requires review by the Court, of many novel and nuanced legal concepts, and Mr. Hamilton will be preparing himself for these arguments throughout the month of September.
By: Maria Rangel
Wednesday, September 8, 2010
Tuesday, August 24, 2010
HAMILTON WINS ASYLUM FOR KENYAN TORTURE VICTIM
If you have read the two posts below, this post should provide a sense of the kind of month it is shaping up to be at my modest firm. You will note that we successfully comleted the long-term and extremely challenging Ugandan torture victim's case on August 18, and then ended a seven year quest for lawful permanent residency for one of our few Guatemalan clients the very next day, August 19, 2010. We also appeared in court, ready for trial in another extremely protracted Guatemalan immigration litigation matter on August 17, 2010 which was continued to next year due to illness of the judge.
However, we should not neglect to mention that the only Kenyan case which we were scheduled to take to trial this month (the asylum claim of a Kenyan torture victim) has been tried and asylum granted by Immigration Judge DeJongh of the Los Angeles Immigration Court on August 12, 2010.
We have no further immigration trials (final hearings in a court of law) scheduled this month and the outcomes discussed in the two previous posts and in this one, represent all of the final hearings which have been conducted so far this month by me, regardless of the aliens' countries of origin.
By: Duane M. Hamilton, Esq.
However, we should not neglect to mention that the only Kenyan case which we were scheduled to take to trial this month (the asylum claim of a Kenyan torture victim) has been tried and asylum granted by Immigration Judge DeJongh of the Los Angeles Immigration Court on August 12, 2010.
We have no further immigration trials (final hearings in a court of law) scheduled this month and the outcomes discussed in the two previous posts and in this one, represent all of the final hearings which have been conducted so far this month by me, regardless of the aliens' countries of origin.
By: Duane M. Hamilton, Esq.
HAMILTON PREVAILS IN COMPLEX ADJUSTMENT OF GUATEMALAN ALIEN FOLLOWING TERMINATION OF REMOVAL PROCEEDINGS
On August 19, 2010, Attorney Hamilton, completed the family-based adjustment of status of a Guatemalan alien who had been apprehended by ICE in 2003 during an attempted entry into the United States. During entry, it was alleged by the Government that the alien attempted to pass herself off as a U.S. Citizen (an extremely serious offense, for which there is no waiver).
Mr. Hamilton has been the only attorney in this matter. The following complex steps were taken leading to the August 19, 2010 adjustment hearing: Mr. Hamilton represented the alien while in detention successfully in a "credible fear hearing," which is a screening process to determine whether the alien might qualify for asylum. Next Mr. Hamilton secured parole from detention for the alien to pursue an asylum claim. Mr. Hamilton secured a change of venue for the alien from the jurisdiction of detention to Los Angeles, California. Mr. Hamilton then informed the court of the possibility that the alien might immigrate through a parent's family-based petition (for which a visa was not yet available, and would not be available for a number of years). Mr. Hamilton continued to pursue and document the asylum claim on the alien's behalf as the years passed. Over a year ago, a visa did in fact become available to the alien based on the parent's petition, but several obstacles stood in the way of adjustment. Firstly, the Immigration Judge (IJ) ruled that IJs do not have jurisdiction to perform adjustments of status for paroled aliens. Mr. Hamilton thus pursued a motion to terminate proceedings to allow USCIS to perform the adjustment (which requires the agreement of the Government's counsel). However, the government's lawyer would not agree to the termination since it appeared to the Government that the alleged false claim rendered the alien ineligible for adjustment. Mr. Hamilton then briefed for the Government's counsel and the court, the technical legal reasons why the alien's conduct should not amount to a false claim of citizenship which would deny the alien an adjustment of status. Finally, with the agreement of the government's lawyers earlier this year, Mr. Hamilton secured the Immigration Judge's termination of Removal Proceedings , for USCIS to perform the adjustment.
The officer's file at the adjustment interview was well over 1000 pages of Mr. Hamilton's considerable efforts in the various facets of the case. However, between Mr. Hamilton and the adjudications officer, all of the legal questions related to potential bars to adjustment were overcome and the alien's adjustment of status was granted. This alien has thus, after all of these years, finally immigrated to the United States, becoming a Lawful Permanent Resident. The firm congratulates the alien and thanks both the Court and the adjudicating officer for their parts in this lengthy and difficult process.
By: Maria Rangel
Mr. Hamilton has been the only attorney in this matter. The following complex steps were taken leading to the August 19, 2010 adjustment hearing: Mr. Hamilton represented the alien while in detention successfully in a "credible fear hearing," which is a screening process to determine whether the alien might qualify for asylum. Next Mr. Hamilton secured parole from detention for the alien to pursue an asylum claim. Mr. Hamilton secured a change of venue for the alien from the jurisdiction of detention to Los Angeles, California. Mr. Hamilton then informed the court of the possibility that the alien might immigrate through a parent's family-based petition (for which a visa was not yet available, and would not be available for a number of years). Mr. Hamilton continued to pursue and document the asylum claim on the alien's behalf as the years passed. Over a year ago, a visa did in fact become available to the alien based on the parent's petition, but several obstacles stood in the way of adjustment. Firstly, the Immigration Judge (IJ) ruled that IJs do not have jurisdiction to perform adjustments of status for paroled aliens. Mr. Hamilton thus pursued a motion to terminate proceedings to allow USCIS to perform the adjustment (which requires the agreement of the Government's counsel). However, the government's lawyer would not agree to the termination since it appeared to the Government that the alleged false claim rendered the alien ineligible for adjustment. Mr. Hamilton then briefed for the Government's counsel and the court, the technical legal reasons why the alien's conduct should not amount to a false claim of citizenship which would deny the alien an adjustment of status. Finally, with the agreement of the government's lawyers earlier this year, Mr. Hamilton secured the Immigration Judge's termination of Removal Proceedings , for USCIS to perform the adjustment.
The officer's file at the adjustment interview was well over 1000 pages of Mr. Hamilton's considerable efforts in the various facets of the case. However, between Mr. Hamilton and the adjudications officer, all of the legal questions related to potential bars to adjustment were overcome and the alien's adjustment of status was granted. This alien has thus, after all of these years, finally immigrated to the United States, becoming a Lawful Permanent Resident. The firm congratulates the alien and thanks both the Court and the adjudicating officer for their parts in this lengthy and difficult process.
By: Maria Rangel
HAMILTON WINS ASYLUM ON REMAND FOR UGANDAN TORTURE VICTIM
Another of Attorney Hamilton's long term immigration litigation cases came to a successful close with a grant of asylum, on August 18, 2010, before Judge Stancil of the Los Angeles Immigration Court. The case had been ongoing since the mid 90s.
The alien, who had been subjected to torture by Ugandan government authorities, was represented at an initial trial, and then before the Board of Immigration Appeals (BIA) by another firm, who in spite of very vigorous efforts, were unable to convince either tribunal that any humanitarian application on behalf of the alien should be granted. The issue of the alien's identity was heavily contested by the Government during that hearing, and having been unable to satisfy the Court or BIA of his identity, those tribunals felt it unnecessary to fully adjudicate the asylum claim. The alien was also applying for asylum after he had been in the United States for more than one year in conflict with the Immigration & Nationality Act's general requirement that asylum claims be filed within one year of an alien's arrival.
Attorney Hamilton received the case in 2003 to prosecute the alien's 9th Circuit Court of Appeals Petition for Review. The case was argued by Mr. Hamilton before 9th Circuit judges Noonan, Kleinfeld and Berzon, on February 17, 2006. Mr. Hamilton pressed in his briefs and at oral arguments, that the alien's due process had been violated, since said alien was not afforded by the trial judge, a complete opportunity to present his claims, or develop the record with respect to identity. The 9th Circuit agreed, issuing a memorandum granting the petition for review on August 15, 2006. The memorandum remanded the case to the BIA, which in turn remanded the matter to the trial court for retrial. The decision of the 9th Circuit in this case is not considered a "published" decision and thus, does not have the force of binding legal authority in other cases.
The trial in this matter, conducted by Mr. Hamilton in Los Angeles on August 18 was both memorable and rewarding, with the Immigration Judge and Government's counsel exercising compassion and substantial discretion towards the alien. The firm is proud of its part in this outcome and grateful to both the Government and the Court for this most favorable of outcomes.
By: Maria Rangel
The alien, who had been subjected to torture by Ugandan government authorities, was represented at an initial trial, and then before the Board of Immigration Appeals (BIA) by another firm, who in spite of very vigorous efforts, were unable to convince either tribunal that any humanitarian application on behalf of the alien should be granted. The issue of the alien's identity was heavily contested by the Government during that hearing, and having been unable to satisfy the Court or BIA of his identity, those tribunals felt it unnecessary to fully adjudicate the asylum claim. The alien was also applying for asylum after he had been in the United States for more than one year in conflict with the Immigration & Nationality Act's general requirement that asylum claims be filed within one year of an alien's arrival.
Attorney Hamilton received the case in 2003 to prosecute the alien's 9th Circuit Court of Appeals Petition for Review. The case was argued by Mr. Hamilton before 9th Circuit judges Noonan, Kleinfeld and Berzon, on February 17, 2006. Mr. Hamilton pressed in his briefs and at oral arguments, that the alien's due process had been violated, since said alien was not afforded by the trial judge, a complete opportunity to present his claims, or develop the record with respect to identity. The 9th Circuit agreed, issuing a memorandum granting the petition for review on August 15, 2006. The memorandum remanded the case to the BIA, which in turn remanded the matter to the trial court for retrial. The decision of the 9th Circuit in this case is not considered a "published" decision and thus, does not have the force of binding legal authority in other cases.
The trial in this matter, conducted by Mr. Hamilton in Los Angeles on August 18 was both memorable and rewarding, with the Immigration Judge and Government's counsel exercising compassion and substantial discretion towards the alien. The firm is proud of its part in this outcome and grateful to both the Government and the Court for this most favorable of outcomes.
By: Maria Rangel
Sunday, August 8, 2010
ASYLUM FOR GUATEMALAN FEMALES FEARING "FEMICIDE"
On July 12, 2010, the 9th Circuit published its decision in Perdomo v. Holder. In this intriguing case the court appears to have carved out a potential pathway to asylum for Guatemalan women within a certain range of ages, who fear "femicide," the killing of females in that country.
Many questions remain open however, in the wake of this particular case. For instance, to what extent will Asylum Offices (AOs) honor and apply the Perdomo case. In theory AO's must apply the case law of the circuit in which the AO is located. However, in practice, there have been instances in which AO officers, supervisors and even directors have stretched to find reasons why they should not apply circuit court authority to certain cases and classes of applicants. Immigration Judges, all of whom are lawyers, tend to exercise more caution so as not to ignore or misapply circuit court authority.
Guatemalans like Mexicans, comprise a large block of the undocumented in the United States. Will the AOs ernestly apply Perdomo on a case by case basis, or will they find reasons to deny such claims, fearing the opening of the flood-gates of asylum claims of Guatemalan non-NACARA females?
Further, how quickly must a Guatemalan move in filing a Perdomo asylum claim? For Guatemalans who are within one-year of their last entry, the general rule requires that they apply for asylum within that one year. For Guatemalans who have been in the United States for more than one year without departure, the regulations which govern the timeliness of filing asylum claims become quite complex. Such cases must be assessed on a case-by-case basis by a lawyer who is well versed in asylum jurisprudence and the regulations surrounding the one-year filing issue and its exceptions. However, our firm would encourage any Guatemalan female who fears "femicide" not to delay in consulting with such an attorney. Delay in such matters may weaken the applicant's asylum claim, and should the delay be viewed as having been unreasonable, may actually cause the denial of an otherwise meritorious asylum case.
What about Guatemalan females who have gone through the asylum process and have been denied asylum by immigration judges and the Board of Immigration Appeals (and perhaps even a Federal Court of Appeals)? Will Perdomo amount to sufficient grounds to reopen those asylum claims? Again, these questions will be definitively answered as Guatemalan applicants apply to reopen their proceedings on the basis of Perdomo. However, a Guatemalan female who fears femicide in Guatemala should, again, consult with an experienced immigration litigation attorney without delay.
This notification is not intended as legal advice or as a legal opinion for any alien. Perdomo asylum claims will succeed and/or fail on a case by case basis and on the facts and or merits of each individual case. Aliens must recognize that one alien's success does not guarantee success for all who file similar claims. Aliens must consult their lawyers related to their particular claim and be ready to accept the attorney's advisory related to the peculiarities and particulars of their circumstances.
Guatemalan females who fear "femicide" in Guatemala are welcome to consult with Chow & Hamilton with regard to the asylum and/or reopening process.
By: Duane M. Hamilton
Many questions remain open however, in the wake of this particular case. For instance, to what extent will Asylum Offices (AOs) honor and apply the Perdomo case. In theory AO's must apply the case law of the circuit in which the AO is located. However, in practice, there have been instances in which AO officers, supervisors and even directors have stretched to find reasons why they should not apply circuit court authority to certain cases and classes of applicants. Immigration Judges, all of whom are lawyers, tend to exercise more caution so as not to ignore or misapply circuit court authority.
Guatemalans like Mexicans, comprise a large block of the undocumented in the United States. Will the AOs ernestly apply Perdomo on a case by case basis, or will they find reasons to deny such claims, fearing the opening of the flood-gates of asylum claims of Guatemalan non-NACARA females?
Further, how quickly must a Guatemalan move in filing a Perdomo asylum claim? For Guatemalans who are within one-year of their last entry, the general rule requires that they apply for asylum within that one year. For Guatemalans who have been in the United States for more than one year without departure, the regulations which govern the timeliness of filing asylum claims become quite complex. Such cases must be assessed on a case-by-case basis by a lawyer who is well versed in asylum jurisprudence and the regulations surrounding the one-year filing issue and its exceptions. However, our firm would encourage any Guatemalan female who fears "femicide" not to delay in consulting with such an attorney. Delay in such matters may weaken the applicant's asylum claim, and should the delay be viewed as having been unreasonable, may actually cause the denial of an otherwise meritorious asylum case.
What about Guatemalan females who have gone through the asylum process and have been denied asylum by immigration judges and the Board of Immigration Appeals (and perhaps even a Federal Court of Appeals)? Will Perdomo amount to sufficient grounds to reopen those asylum claims? Again, these questions will be definitively answered as Guatemalan applicants apply to reopen their proceedings on the basis of Perdomo. However, a Guatemalan female who fears femicide in Guatemala should, again, consult with an experienced immigration litigation attorney without delay.
This notification is not intended as legal advice or as a legal opinion for any alien. Perdomo asylum claims will succeed and/or fail on a case by case basis and on the facts and or merits of each individual case. Aliens must recognize that one alien's success does not guarantee success for all who file similar claims. Aliens must consult their lawyers related to their particular claim and be ready to accept the attorney's advisory related to the peculiarities and particulars of their circumstances.
Guatemalan females who fear "femicide" in Guatemala are welcome to consult with Chow & Hamilton with regard to the asylum and/or reopening process.
By: Duane M. Hamilton
JULY 2010 IN REVIEW
July 2010 produced a number of successes for Chow & Hamilton. Several of our Kenyan asylum claims which had been pending for decisions at the asylum office after interview, and at the trial court level, after trial, were approved. Most of those cases were complex, in that our clients were applying for asylum under exceptions to the one-year asylum filing bar. In mid July, we also won adjustment of status, and therefore, Lawful Permanent Residence, for a Kenyan who had been a victim of battery and extreme cruelty at the hand of a US Citizen spouse, under the Violence Against Womens Act (VAWA), and our only marriage-based adjustment of status interview for the month yielded an approval, permitting our Kenyan client, who had resided in the United States for quite a number of years without status, to finally immigrate.
We welcome all of these successful applicants to the United States and are extremely happy to have played a part in their immigration processes.
By: Duane M. Hamilton
We welcome all of these successful applicants to the United States and are extremely happy to have played a part in their immigration processes.
By: Duane M. Hamilton
Friday, July 2, 2010
PADILLA V. KENTUCKY AND THE OBLIGATION OF CRIMINAL LAWYERS TO PROPERLY ADVISE ON IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTION
Criminal lawyers and their clients often find themselves in a difficult predicament when it comes to representing criminal defendants who are not citizens of the United States. A criminal lawyer may, from a pure criminal law perspective, act brilliantly in crafting a plea arrangement for his client, but at the same time, fail miserably, where that plea arrangement does not fully take into account the immigration consequences of conviction. Depending on the alien's circumstances, a plea to a crime which is classified from an immigration point of view as an "aggravated felony," may subject the alien to nearly certain deportation, though the plea arrangement allowed the alien to suffer minimal criminal consequences. Other crimes classified as Crimes Involving Moral Turpitude (CIMTs) may also trigger "Removal" proceedings, though a broader array of immigration defenses or relief applications may be considered by an Immigration Judge (IJ) when the alien is charged with one or more CIMTs.
How much immigration law does a criminal lawyer really have to know in order to competently represent a non-citizen in the criminal courts of the United States? A considerable amount, it would now appear, in light of Padilla v. Kentucky, decided on March 31, 2010 by the U.S. Supreme Court. The Supreme Court in essence held in Padilla, that where the deportation consequences of a criminal plea are clear, the criminal lawyer has "the duty to give correct advice..." The challenge that this presents for the criminal lawyer is obvious; criminal law and immigration law are separate and distinct specialties, both highly complex in their own right. Criminal lawyers are not typically well versed in immigration law (though many have some rudimentary understanding of the potential for certain criminal convictions to trigger removal proceedings). On the other hand, a great many immigration litigation lawyers (lawyers who represent clients in the immigration court and during immigration appeals) do not regularly represent defendants in criminal courts. Often with significant preparation, such lawyers may cross the boundaries of their specialties, achieving a satisfactory result for the client. A great many immigration lawyers are well versed in moving to vacate guilty pleas on behalf of criminal aliens in criminal court, but may not otherwise be up to date in the procedural or substantive aspects of day-to-day criminal court practice.
A criminal alien (that is a person with a green-card or who is undocumented and is facing criminal charges in a court of law or has already been convicted of a crime) must consider very carefully the experience of his lawyer, with respect to both criminal and immigration law. Where a criminal attorney is not well versed in Immigration "Consequences of Crimes" practice, the alien should require that his counsel collaborate with a seasoned immigration litigation lawyer, and receive a "consequences of crimes" opinion from such lawyer, before he or she pleads guilty or no contest. This, of course, will drive up the cost of the alien's legal representation, since the immigration lawyer must charge for his time and expertise in drafting the opinion. The criminal lawyer should then use the immigration lawyer's opinion in advising the alien, crafting a plea arrangement, or making a decision to take the case to trial. On the other hand, in this attorney's opinion, an immigration lawyer who is taking on the criminal defense of an alien and who has not practiced in immigration court for an extended period of time, should commit him or herself to observing the procedures and practices of the particular criminal judge, and should bring him or herself up to date with the most current criminal law related to the particular case. I believe that the lawyer should also be up front with the client that he or she is primarily and immigration litigation lawyer and that the client should be hiring him or her because the immigration consequences of conviction may be as or more severe than the criminal consequences.
Having said all of this, it is important for alien criminal defendants to understand that even with the best collaboration between criminal and immigration lawyer, or with the best and most experienced of lawyers possessing tremendous expertise in both immigration and criminal law, the facts the lawyer is handed and the prevailing law pertaining to the case, will often constrain the outcome. In other words, an alien who shoots a police officer in the presence of witnesses and whose murder weapon is recovered by the police, and who is confronted in court by the eye witnesses, will most likely be convicted, and will also most likely be deported without any immigration remedy. The lawyers' role is simply to advise the client as fully as possible and to seek the most favorable outcome possible for the client.
Aliens accused of crimes should not wait to be told to consult with an immigration litigation lawyer. And from this lawyers perspective most criminal lawyers now will either have to educate themselves completely on the complexities of immigration consequences of crimes or consult with experienced immigration lawyers in these matters.
Duane M. Hamilton
How much immigration law does a criminal lawyer really have to know in order to competently represent a non-citizen in the criminal courts of the United States? A considerable amount, it would now appear, in light of Padilla v. Kentucky, decided on March 31, 2010 by the U.S. Supreme Court. The Supreme Court in essence held in Padilla, that where the deportation consequences of a criminal plea are clear, the criminal lawyer has "the duty to give correct advice..." The challenge that this presents for the criminal lawyer is obvious; criminal law and immigration law are separate and distinct specialties, both highly complex in their own right. Criminal lawyers are not typically well versed in immigration law (though many have some rudimentary understanding of the potential for certain criminal convictions to trigger removal proceedings). On the other hand, a great many immigration litigation lawyers (lawyers who represent clients in the immigration court and during immigration appeals) do not regularly represent defendants in criminal courts. Often with significant preparation, such lawyers may cross the boundaries of their specialties, achieving a satisfactory result for the client. A great many immigration lawyers are well versed in moving to vacate guilty pleas on behalf of criminal aliens in criminal court, but may not otherwise be up to date in the procedural or substantive aspects of day-to-day criminal court practice.
A criminal alien (that is a person with a green-card or who is undocumented and is facing criminal charges in a court of law or has already been convicted of a crime) must consider very carefully the experience of his lawyer, with respect to both criminal and immigration law. Where a criminal attorney is not well versed in Immigration "Consequences of Crimes" practice, the alien should require that his counsel collaborate with a seasoned immigration litigation lawyer, and receive a "consequences of crimes" opinion from such lawyer, before he or she pleads guilty or no contest. This, of course, will drive up the cost of the alien's legal representation, since the immigration lawyer must charge for his time and expertise in drafting the opinion. The criminal lawyer should then use the immigration lawyer's opinion in advising the alien, crafting a plea arrangement, or making a decision to take the case to trial. On the other hand, in this attorney's opinion, an immigration lawyer who is taking on the criminal defense of an alien and who has not practiced in immigration court for an extended period of time, should commit him or herself to observing the procedures and practices of the particular criminal judge, and should bring him or herself up to date with the most current criminal law related to the particular case. I believe that the lawyer should also be up front with the client that he or she is primarily and immigration litigation lawyer and that the client should be hiring him or her because the immigration consequences of conviction may be as or more severe than the criminal consequences.
Having said all of this, it is important for alien criminal defendants to understand that even with the best collaboration between criminal and immigration lawyer, or with the best and most experienced of lawyers possessing tremendous expertise in both immigration and criminal law, the facts the lawyer is handed and the prevailing law pertaining to the case, will often constrain the outcome. In other words, an alien who shoots a police officer in the presence of witnesses and whose murder weapon is recovered by the police, and who is confronted in court by the eye witnesses, will most likely be convicted, and will also most likely be deported without any immigration remedy. The lawyers' role is simply to advise the client as fully as possible and to seek the most favorable outcome possible for the client.
Aliens accused of crimes should not wait to be told to consult with an immigration litigation lawyer. And from this lawyers perspective most criminal lawyers now will either have to educate themselves completely on the complexities of immigration consequences of crimes or consult with experienced immigration lawyers in these matters.
Duane M. Hamilton
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