On Thursday, August 18, 2011, the Obama Administration made an announcement related to prioritizing its efforts against aliens facing removal (deportation). This announcement did not convey any sort of legal status to aliens, nor does it provide any mechanism to apply for status. The announcement pertains to whether cases deemed "low priority" will be prosecuted for deportation, and a prospective process by which those aliens whose whose cases are administritively closed by the immigration court as "low priority" cases, might apply for an employment authorization document (EAD).
DO NOT LISTEN TO OR BELIEVE ANY IMMIGRATION CONSULTANT, NOTARIO, OR NON-LAWYER WHO SUGGESTS, OR ATTEMPTS TO EXTRACT MONEY FROM YOU TO APPLY FOR AN EMPLOYMENT AUTHORIZATION UNDER THE OBAMA ANNOUNCEMENT, SINCE THERE IS NO MECHANISM AT THIS TIME, BY WHICH THAT CAN BE DONE. FURTHER, IT REMAINS EXTREMELY RISKY FOR AN UNDOCUMENTED OR OVERSTAYED ALIEN TO TURN THEMSELVES IN TO IMMIGRATION AUTHORITIES.
THOUGH SOME ALIENS CAN AND DO BENEFIT FROM BEING PLACED IN REMOVAL PROCEEDINGS TO PURSUE CERTAIN TYPES OF APPLICATIONS, SUCH PLACEMENT SHOULD ONLY BE UNDERTAKEN WITH THE GUIDANCE AND REPRESENTATION OF AN EXPERIENCED IMMIGRATION LAWYER.
The announcement does not provide any mechanism at present (beyond those already available by regulation) for an alien to apply for an employment authorization, and aliens who are pursuing existing cases in court for immigration status through asylum, cancellation of removal, adjustment of status, and other remedies, are seeking "status" in the US and a pathway (at least in the forms of relief mentioned) to Lawful Permanent Residence (LPR) and ultimately US Citizenship.
To the extent that an alien's Immigration Court "Removal" case is administratively closed and the alien granted an EAD through some future application process, Obama's announcement does not suggest that the alien would cease to be inadmissible for overstaying a visa or I-94 for example, and thus the alien overstay (overstayed for more than 6 months) would continue to risk being barred from re-admission to the United States if they depart.
The American Immigration Lawyers Association (AILA) has published a consumer advisory and warning to the public to clarify what this announcement is and what it is not. Aliens should read this advisory for themselves, and if confused about anything therein, consult with and ask an experienced immigration lawyer to explain it to them. The consumer advisory can be found at http://chat.aila.org/content/default.aspx?docid=36705. I encourage all undocumented or overstayed aliens to read this advisory and consult with an immigration lawyer before taking any action with respect to the August 18 announcement.
Chow & Hamilton will not be answering questions by phone related to the announcement or the above advisory. Individuals seeking advice regarding this matter will be referred to the AILA Consumer Advisory, this blog posting, and should schedule appointments with a lawyer of the firm.
Exisiting clients of the firm will be advised as to how the announcement might affect their individual cases, on a case by case basis, as they continue to consult and prep with the firm.
Monday, August 22, 2011
Tuesday, August 16, 2011
HAMILTON WINS REOPENING FOR LONG-TIME KENYAN DEPORTEE
On August 9, 2011, the BIA, in response to Mr. Hamilton's Motion to Reopen (MTR) filed in May 2011, reopened the case of Kenyan alien who had been the subject of a final deportation issued in 2003. The case involved a number intersecting thorny and complex legal issues, including changes in law in the United States.
The alien is now permitted to reapply for immigration benefits which had been previously denied, and seek any other remedies which may be available.
By: Maria Rangel
The alien is now permitted to reapply for immigration benefits which had been previously denied, and seek any other remedies which may be available.
By: Maria Rangel
Wednesday, July 27, 2011
9th CIRCUIT OVERRULES LUJAN-ARMENDARIZ -- WILL NO LONGER HONOR EXPUNGED MINOR DRUG POSSESSION CONVICTIONS UNDER THE FEDERAL FIRST OFFENDER STATUTE
For the past 11 years, under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), aliens convicted in federal or state court of single simple drug posossion and placed in Removal Proceedings in any state under the jurisdiction of the 9th Circuit Court of Appeals (9th Circuit), could escape the harsh consequences of deportation by invoking a statute known as the Federal First Offender Act ("FFOA") as long as their convictions had been expunged. On July 14, 2011, in Nunez-Reyes v. Holder, No. 05-7430, the 9th Circuit reversed Lujan-Armendariz and ruled that aliens who are the subject of such expunged simple possession convictions, may not be relieved from deportation under FFOA.
The reasons for this reversal are complex and beyond the purpose of this blog. Simply put however, it appears that the 9th Circuit felt some pressure to rule in this manner in light of similar rulings by numerous other Federal Circuit Courts of Appeal around the country. The analysis used by the 9th and these other Circuit Courts is troubling, in that it would appear to set the stage for the Constitutional justification of just about any arbitrary or capricious law against immigrants conjured up and enacted by Congress, regardless of whether those laws violate the time-honored concepts of "Equal Protection," freedom of expression, or even perhaps "due process" itself.
The only bright spot in Nunez-Reyes is the fact that the decision will not be applied retroactively. This means that qualified aliens whose convictions took place prior to July 14, 2011, will continue to receive the benefit of FFOA for deportation purposes.
Aliens (including those with Lawful Permanent Resident status) must be extremely careful with respect to even the most minor drug involvement, since the lawyers' options to defend them from deportation in the 9th circuit has been reduced. The notion that an alien knows some individual who was convicted of a minor drug offense and escaped deportation must be dispensed with, since cases within the 9th Circuit applying FFOA and those in which the alien is ineligible for FFOA protection, may have dramatically different outcomes.
It should also be noted that state rehabilitative schemes such as "expungement," are not generally useful as a technique for rescuing aliens from the consequences of deportation. For most criminal convictions, something much more involved than simple expungement must be undertaken and approved in criminal court to wipe away the conviction for immigration purposes.
By: Duane M. Hamilton
The reasons for this reversal are complex and beyond the purpose of this blog. Simply put however, it appears that the 9th Circuit felt some pressure to rule in this manner in light of similar rulings by numerous other Federal Circuit Courts of Appeal around the country. The analysis used by the 9th and these other Circuit Courts is troubling, in that it would appear to set the stage for the Constitutional justification of just about any arbitrary or capricious law against immigrants conjured up and enacted by Congress, regardless of whether those laws violate the time-honored concepts of "Equal Protection," freedom of expression, or even perhaps "due process" itself.
The only bright spot in Nunez-Reyes is the fact that the decision will not be applied retroactively. This means that qualified aliens whose convictions took place prior to July 14, 2011, will continue to receive the benefit of FFOA for deportation purposes.
Aliens (including those with Lawful Permanent Resident status) must be extremely careful with respect to even the most minor drug involvement, since the lawyers' options to defend them from deportation in the 9th circuit has been reduced. The notion that an alien knows some individual who was convicted of a minor drug offense and escaped deportation must be dispensed with, since cases within the 9th Circuit applying FFOA and those in which the alien is ineligible for FFOA protection, may have dramatically different outcomes.
It should also be noted that state rehabilitative schemes such as "expungement," are not generally useful as a technique for rescuing aliens from the consequences of deportation. For most criminal convictions, something much more involved than simple expungement must be undertaken and approved in criminal court to wipe away the conviction for immigration purposes.
By: Duane M. Hamilton
Wednesday, June 22, 2011
CHOW & HAMILTON COMPLETES EXPANSION
The firm's office expansion is now complete, having added over 700 square feet of reception, office, library, and conferencing space. The larger part of our extensive Federal law library of almost 2000 volumes are shelved and we have reconfigured the reception area.
You will also be meeting our two new summer Legal Assistant interns, Christina Martinez and Azusena Gaspar, who will be manning the front office.
We hope to share this new and more comfortable office suite with you for many years to come.
By: Duane Hamilton
You will also be meeting our two new summer Legal Assistant interns, Christina Martinez and Azusena Gaspar, who will be manning the front office.
We hope to share this new and more comfortable office suite with you for many years to come.
By: Duane Hamilton
Monday, May 23, 2011
CHOW & HAMILTON BEGIN EXPANSION OF FULLERTON OFFICES
We are happy to announce that the firm's office in Fullerton, California, today, has begun construction to expand and add more than 700 additional square feet to our existing operating space. The wall which separated our waiting area from a neighboring office is being cut in half to create a more spacious visual effect upon entry. The additional square footage will house our new law library and some additional conferencing and office space.
We anticipate that construction will be complete by the end of this week or early next week, however, the process of furnishing and equiping the new office space will continue over the next month or two.
We apologize for any temporary disruption caused by the ongoing construction.
By: Duane M. Hamilton
We anticipate that construction will be complete by the end of this week or early next week, however, the process of furnishing and equiping the new office space will continue over the next month or two.
We apologize for any temporary disruption caused by the ongoing construction.
By: Duane M. Hamilton
Tuesday, May 10, 2011
SAN FRANCISCO IMMIGRATION JUDGE GRANTS ASYLUM IN 9-YEAR LITIGATION BATTLE
On May 5, 2011, Immigration Judge, Joren Lyons, of the San Francisco Immigration Court granted a Kenyan asylum applicant's request for asylum following re-trial of the asylum and related humanitarian claims subsequent to appellate remands from the 9th Circuit Court of Appeals and Board of Immigration Appeals (BIA).
Attorney Hamilton first took on the case in May of 2002 and has been litigating the matter at the trial court, BIA, and Federal Circuit Court of Appeals levels ever since. It became clear on appeal that the initial trial Judge (since retired) made critical legal errors in the case and denied the asylum claim based upon a flawed understanding of the legal concept of "political opinion" and of the very nature of the facts as they were testified to at trial.
This was Mr. Hamilton's second asylum trial for the year 2011. Our firm congratulates the applicant and bids said applicant welcome to lawful status in the United States.
By: Maria Rangel
Attorney Hamilton first took on the case in May of 2002 and has been litigating the matter at the trial court, BIA, and Federal Circuit Court of Appeals levels ever since. It became clear on appeal that the initial trial Judge (since retired) made critical legal errors in the case and denied the asylum claim based upon a flawed understanding of the legal concept of "political opinion" and of the very nature of the facts as they were testified to at trial.
This was Mr. Hamilton's second asylum trial for the year 2011. Our firm congratulates the applicant and bids said applicant welcome to lawful status in the United States.
By: Maria Rangel
OUR NEW E-MAIL ADDRESS
Many of you may have recognized that we are now using the new e-mail address of chowhamilton@gmail.com. We have enabled this new address as a result of certain spamming problems we were encountering at the old address. Though we still maintain the old address at AOL, the new gmail address is the primary address where we will be looking for our mail.
By: Maria Rangel
By: Maria Rangel
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