HAMILTON OVERCOMES ONE-YEAR FILING BAR IN KENYAN ASYLUM TRIAL

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

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

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

By:  Duane Hamilton

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

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

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

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

By:  Duane Hamilton

KENYAN COUPLE GRANTED WITHHOLDING OF REMOVAL AND ADMIN. CLOSURE RESPECTIVELY

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

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

By:  Duane Hamilton

KENYAN APPLICANT'S PATIENCE REWARDED BY LOS ANGELES IMMIGRATION JUDGE

Yesterday, Judge Neumeister of the Los Angeles Immigration Court granted the asylum claim of of one of my Kenyan clients who has been litigating an asylum claim, with my assistance, for the last five and a half years.  One extraordinary aspect of this case is the number of times the applicant and I appeared for trial, ready to proceed, only to be rescheduled, for reasons beyond our control, to a much later trial date.

I am happy to say that so many years and two judges later, the client was afforded a hearing on the compelling merits of the asylum claim, with the most favorable of outcomes.

On behalf of the applicant, we thank Judge Neumeister, and DHS counsel, Ms. Woods, for their participation in this matter.

By: Duane Hamilton

MORE KENYAN HUMANITARIAN APPROVALS

On May 23, and May 30, 2013, I received a recommended approval and final approval of two of my Kenyan asylum cases which had been backlogged with the Asylum Office (AO) in Anaheim since last year.  Cases in Anaheim (which is the Los Angeles district AO), have been pending for much longer periods than usual, due to a backlog of cases which has developed in that particular office.  We believe that in spite of the frustrations associated with the unusual delay, the wait was well worth it for these applicants.

Yesterday, June 5, 2013, in trial, Judge Bartolomei of the San Diego Immigration Court, granted withholding of removal to another of my Kenyan clients who was applying for humanitarian relief well after the requisite asylum one year deadline, which requires applicants to file their asylum claims within one year after their last arrival into the United States.  Withholding which does not require filing in one year, but carries a higher burden of proof, nevertheless, protects the applicant from being returned to a country in which they have been harmed or fear harm, with renewable authorization to work in the US indefinitely.

By:  Duane Hamilton

16 YEAR IMMIGRATION CASE DECIDED IN PUBLISHED 9TH CIRCUIT LAWRENCE V. HOLDER

My oldest case, a matter which I have been litigating in immigration court, the BIA and the 9th Circuit Court of Appeals, for the past 16 years (since 1997), was decided by the 9th Circuit yesterday in a "For Publication" opinion -Lawrence v. Holder, Attorney General, No 07-74829.  The representation of aliens determined by the immigration court to be "aggravated felons" (Ag Felons) is among the most difficult and nuanced endeavors for an immigration attorney.  Ag felons are stripped of many forms of immigration relief and often find themselves with an extremely narrow set of options (and sometimes no option at all) for remaining in the United States.

In this case, I attempted on behalf of the alien, a native and citizen of Panama, to bring immigration law back to its own accepted and time-tested definition of the term "admission" or "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer" as set forth in 8 U.S.C. §1101(a)(13)(A).  This concept was important since the alien had served more than a 5 year sentence and 212(c) relief, which was the sole relief being requested by the alien, is generally unavailable "to an alien who has been convicted of one or more aggravated felonies and has srved for such felony or felonies a term of imprisonment of at least five years." INA §212(c). 

However, this 5 year imprisonment bar did not go into effect until November 29, 1990 with the passage of IMMACT, on November 29, 1990.  IMMACT 511(b) specifically provided that the 5 year imprisonment bar "shall apply to admissions occurring after the date of the enactment of this Act" Id, which was Nov. 29, 1990.  Since the alien in this particular case had last been "admitted" by lawfully entering the United States after inspection and authorization by an immigration officer, on June 16, 1987 as a Lawful Permanent Resident (LPR), I argued that the 5 year imprisonment bar did not apply to the alien, and he was in fact eligible for what we call "retroactive 212(c) relief" under INS v. St. Cyr, 533 U.S. 289(2001).

The Government's and BIA's position was that the word "admission" in this particular regard, meant the aliens actual application for 212(c) relief (not his authorized entry), and since the alien had applied for 212(c) relief on March 2, 2004, his "admission" for the purpose of 212(c) relief was an admission after November 29, 1990.  This was not argued in an absence of some legal authority, including In Re A-A-, 20 I&N Dec. 492 (BIA 1992) which held as much.  Yet, in spite of this, it was clear to me that the government's and BIA's argument and even A-A- flew in the face of the accepted and well settled definition of the term "admission."  This new concept of "admission" appeared to me to have been a hastily crafted and opportunistic maneuver to reduce the class of ag felons who might qualify for 212(c).  Only lawyers, could change as easily understood a word as "admission" from its regular ussage of essentially being allowed entrance, to "an application for entrance or admission."  Clearly the 212(c) application is not an admission but rather an application for admission wherein such admission might in fact be denied.  Essentially, the term "admission" appears to be whatever the government wishes it to be at any given time, to suit any given agenda it may have at the time.  In my view this appeared tantamount to changing the rules in the middle of the game to favor a particular agenda.

It should be clear that in Lawrence v. Holder, the Court, in siding with the government's definition of "admission," simply finds that their determination is "based on a permissible construction of the statute." citing Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).  The court further pointed to the fact that other sister Circuit Courts of Appeal had taken the government's side with regard to this particular issue.

And so our role in this matter comes to an end.  The case may be of use to attorneys and judges in the future who are faced with these particular issues.

By:  Duane Hamilton

SECOND IMMIGRATION TRIAL OF 2013 YIELDS GRANT OF WITHHOLDING OF REMOVAL

On April 10, 2013, I completed an immigration trial in a Kenyan matter in which the applicants were applying for asylum many years after their arrival in violation of INA 208(a)(2)(B) which requires aliens to apply for asylum within one year of their arrival in the United States.  Mercifully, in these circumstances, where the alien has not convinced the Immigration Judge that they qualify for an exception to the one year filing bar, the Immigration Judge may consider Withholding of Removal and Convention Against Torture (CAT) relief, which do not require filing within one year of arrival.  Though these forms of relief do not convey as many benefits to the alien as asylum, they protect the alien from being returned to the country of persecution and convey the right to renew the alien's employment authorization indefinitely.  Aliens applying for asylum more than one year after their arrivals, must be prepared to entertain the very real possibility that they might not qualify for asylum, and might more realistically qualify for withholding or CAT relief.  The job of the attorney and alien is to convince the court that the alien should not be returned to the country of persecution.  In this sense, a court which listens to the alien, finds him or her credible, and grants, withholding or CAT, has taken, in most instances, life saving measures for which the alien or aliens should be grateful.

We thank Judge Naselow of the Los Angeles Immigration Court, for granting this relief to our clients.

By:  Duane M. Hamilton