Immigration Judge Finds Racial Profiling in Detention Case

May 2nd, 2017

The Atlanta Journal-Constitution reported on April 28, 2017, that an immigration judge (IJ) in Atlanta found unconstitutional racial profiling in an immigration detention case in ruling against US Immigration and Customs Enforcement (ICE) agents. The IJ held that two ICE agents committed “egregious” racial profiling when arresting a man walking from his apartment to catch a ride to work, and that the US Department of Homeland (DHS) attorneys committed “willful misconduct” by advising the agents to ignore the IJ’s subpoena. See http://www.myajc.com/news/local/immigration-judge-finds-racial-profiling-detention-case/ZKpBEDYMJwi9OUSoD7nghI/.

US ICE agents arrested and took into custody Osvaldo Menese Chavez on March 6, 2017, as he walked away from his apartment complex to get a ride to work. DHS sought to deport Chavez on grounds he is an unauthorized immigrant. The ICE agents said that they were at Chavez’s location to arrest another individual. The agents asked to speak with Chavez because he looked like the other suspect and when he tried to run away they arrested him. The IJ noted at the initial court hearing that the agents had used similar reasons to support its other detentions. The IJ then asked DHS to bring the officers to court to testify but the DHS attorneys instructed the agents not to appear and refused to bring the officers to court.

The IJ held that DHS’s conduct thwarted Chavez’ ability to make his case and found the agents’ conduct to be an “egregious violation” of the Fourth Amendment’s protection against unreasonable searches and seizures. “The fact that this judge was so offended by the government’s conduct sends a strong message. It says no one is above the Constitution,” said AILA member Carolina Antonini, who teaches immigration law at Georgia State University.

US DHS Memo on Trump’s Executive Orders on Immigration and Removal

March 3rd, 2017

The U.S. Department of Homeland Security issued a memo implementing President Trump’s two executive orders issued in January 2017 on immigration and removal, which expand the administration’s enforcement targets, requests more border officers and alludes to a new policy on expedited removals.

The DHS prioritizes for removal aliens who:

• Have been convicted of any criminal offense;
• Have been charged with any criminal offense that has not been resolved;
• Have committed acts that constitute a chargeable criminal offense;
• Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
• Have abused any program related to receipt of public benefits;
• Are subject to a final removal order but have not complied with their legal obligations to depart the US; or
• In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

What is extremely concerning about this new set of priorities is its glaring denigration of values serving as the bulwark for justice, fairness and democracy in the US. Agents are now able to seek to remove aliens who have “committed” criminal acts or who are charged with them before being found guilty by a tribunal. What happened to the presumption of innocence in our country? How are agents to determine if someone has committed an illegal act? Who are these agents who are making these critical decisions that will substantially impact a person’s life, and his immediate family’s lives? These priorities are ominous and foretell institutional abuse and lack of transparency.

The expanded use of expedited removal may be unconstitutional, since the US Supreme Court has held that the Due Process Clause applies to undocumented immigrants. Expedited removal has been used since 1996. It circumvents the immigration court system by allowing federal agents to determine if the person should be deported. If the undocumented immigrant claims a fear of persecution or torture then the immigrant is interviewed by US Citizenship and Immigration Services to see if there is a credible fear of persecution and the immigrant should be allowed to apply for asylum in the US. The undocumented immigrant has no right to an attorney and appeals are limited.

Expedited removal is usually only for those caught within 100 miles of the US-Mexican border and who appear to have entered the US within the previous two weeks, although the law allows for it to be used for removal of those who have entered the country within the past two years. Trump’s order increases the range. The Department of Homeland Security has not formally expanded the expedite removal process. It first must publish the policy in the Federal Register and give time for comment from the public.

Department of Homeland Security Rescinding NSEER Program

December 26th, 2016

The US Department of Homeland Security (DHS) is rescinding its (National Security Entry-Exit Registration) NSEER program that was used in the past to screen men between the ages of 16 and 45 from countries with large Arab and Muslim populations. This obsolete program was harmful to individuals and US businesses, a waste of billions of dollars of taxpayers’ money and counterproductive in preventing terrorism. The exigency of repealing it now was a result of the concern of civil rights groups and politicians that the Trump administration could use it to create a registry for Muslims. According to the Guardian newspaper, approximately 80,000 men from 25 countries were forced to provide fingerprints and a photograph and periodically report to the DHS in in-person interviews. This discriminatory program resulted in 14,000 men being placed in removal proceedings with none having been found to have any links to terrorist or violent activities.

Senators Prepare Legislation to Protect Undocumented Immigrants as Trump Prepares to Repeal DACA

December 6th, 2016

The Guardian reports that Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) are drafting legislation to protect the legal status of undocumented immigrants, called Dreamers, who were granted deferred action under DACA (Deferred Action for Childhood Arrivals). DACA protects certain undocumented immigrants from deportation who came to the US before they turned 16. This is a welcome bipartisan message to President-elect Donald Trump, who has taken a hardline stance on immigration and threatened to repeal President Obama’s executive actions on immigration.

If Trump does repeal DACA it is unclear how he would do so. He could suspend the program and immediately revoke the two-year work authorization permits granted to the recipients. Alternatively, he could grandfather those already here but allow the work authorization permits to remain valid until their expiration.

Supreme Court Declines to Rehear Obama Immigration Case

October 4th, 2016

The US Supreme Court has denied the US Department of Justice’s request to rehear US. v. Texas, the case challenging President Obama’s executive action on Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA).  President Obama’s executive action was appropriate and the Court’s failure to reconsider the decision is legislation from the bench.

Immigration is a leading and contentious issue for Americans and the challenge to DAPA and DACA was a quintessential case to be reviewed by the Court.  Because of the failure to confirm a new Supreme Court Justice, and the ensuing 4-4 tie in voting on whether to rehear the case, key issues are going unaddressed and sowing confusion and division.

Attorney General Finds No Right to Counsel in Removal Proceedings

January 27th, 2009

In the midnight hours of the Bush Administration, former Attorney General Michael Mukasey overruled decades of precedent and ruled that aliens have no constitutional right to challenge the outcome of their deportation hearings based on their lawyers’ errors.   In his 33-page decision,  Matter of Compean, 24 I & N Dec. 710 (A.G. 2009), he overruled the Board of Immigration Appeals’ decisions in Matter of Lozada, and Matter of Assaad, finding that there is no Fifth amendment right to counsel in removal (deportation) proceedings.  This decision drastically undermines an alien’s due process rights under the Constitution in a proceeding that has tremendous life-altering consequences. 

For decades, the BIA and most federal courts have supported the notion that immigrants are guaranteed competent counsel in deportation proceedings based on the Fifth Amendment’s guarantee of due process.  Removal is considered a civil, and not criminal, proceeding.  However, the federal courts have still found a constitutional right to competent counsel based on the guarantee of due process under the Fifth Amendment.  Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005); Olvera v. INS, 54 F.2d 1372 (5th Cir. 1974). 

In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the leading case on claims of ineffective assistance of counsel, the Board held that in order for an alien to reopen his removal proceedings based on the lawyer’s error, the alien must establish that his lawyer’s failings had been “egregious”, and that he had been prejudiced by his lawyer’s performance.  The BIA established three criteria for an ineffective assistance of counsel claim to reopen removal proceedings.  The claim must:  (1) have a motion supported by an affidavit setting forth the agreement and representations by the counsel; (2) inform the counsel against whom the claim is made and give counsel an opportunity to respond; and (3) disclose in the motion whether a bar charge has been filed, and if not, why not. 

In Matter of Compean, the AG states that there was a growing split among federal courts over whether aliens had a right to counsel in removal proceedings and that it was necessary to review the law in this arena.  The AG concluded that aliens in removal proceedings have no right to counsel under the Sixth Amendment because removal proceedings are civil, and not criminal in nature.  Also, the AG found that aliens in removal proceedings have no right to counsel under the Fifth Amendment.  He reasoned that although the Fifth Amendment does encompass removal proceedings, its due process protections do not include a general right to counsel or any other specific right to effective assistance of counsel.  Further, he held that the Fifth Amendment’s due process clause is only violated by state action, not a private attorney’s action.  However, granting some level of relief, the AG stated that the government can, as a “matter of discretion”, reopen removal proceedings where the alien was prejudiced because of egregious actions of a private attorney, which changed the outcome of the case.

According to the AG, this discretion is informed by balancing the speedy disposition of cases with justice:  “There is a strong public interest in ensuring that these [lawyer] deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. . .  At the same time, it is important to recognize that there is a strong public interest in the expeditiousness and finality of removal proceedings, an interest that Congress has repeatedly emphasized through legislation imposing time limits and curbing discretionary relief.  Groundless and dilatory claims can tie up the system and postpone the alien’s removal for years.” Id. 728-29.

Matter of Compean undermines an immigrant’s right to a fair hearing before the immigration court and thwarts the federal courts’ role in protecting immigrants against abuses in the immigration courts.  This is especially dire in light of the many questions about the integrity of immigration courts’ decisions and allegations of political cronyism against them, according to the American Immigrations Lawyers Association.  Furthermore, because immigration law at its heart is a labyrinth of complicated rules and regulations, it is necessary that immigrants are guaranteed effective legal representation to navigate them.  Unfortunately, oftentimes immigrants are the prey of unscrupulous and fraudulent attorneys, non-attorneys and notaries.   Matter of Compean gives the green light to such schemes and incompetence.

Immigration Court Practice Manual Effective July 1, 2008

June 17th, 2008

The Executive Office for Immigration Review’s (EOIR) Immigration Court Practice Manual will be effective nationwide on July 1, 2008, and all parties appearing before a US immigration on or after this date must comply with the rules and procedures in this manual.   This will provide consistency to parties, where before they were compelled to learn the varying rules of the different immigration courts.

US Supreme Court Decides on the Side of Illegal Aliens

June 17th, 2008

The US Supreme Court reversed the 5th Circuit in Dada v. Mukasey, making it easier for some foreigners who overstay their visas to seek to remain in the US legally. The court ruled 5-4 that an illegal alien may withdraw request for voluntary departure and continue to try to legalize his or her status in the US.  It held:

“Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires. Petitioner attempted to avail himself of this opportunity below. The Court of Appeals for the Fifth Circuit did not disturb the Board of Immigration Appeals (BIA or Board) denial of petitioner’s request to withdraw the voluntary departure election. We now reverse its decision and remand the case.”