Articles Posted in Deportation & Removal

How is Governor Arnold Schwarzenegger going to save us money? How about massive deportation plan. California Corrections officials are reviewing the cases of undocumented immigrant prisoners to see who can be deported. About 6,000 up for consideration have more than one felony.

Releasing undocumented prisoners is part of the Governor’s plan to save the state about a billion dollars. The Governor has the power to release about 2000 undocumented immigrant prisoners. Included are those who have not committed serious, violent or sex crimes and have just one felony.

Mexican officials on the other hand, are not so pleased. Deporting thousands of criminals back to Mexico may weaken the current crackdown on drug gangs all across Mexico. Working together the two governments should find the middle ground.

We all know that Asylum is a tough relief to get and one must fit a very strict set of legal standards. Mostly political or related cases. But now the Obama Administration opened the door to a new policy. The government has opened the way for foreign women who are victims of severe domestic beatings and sexual abuse to receive asylum in the United States. The action reverses a Bush administration stance in a protracted and passionate legal battle over the possibilities for battered women to become refugees.

In addition to meeting other strict conditions for asylum, abused women will need to show that they are treated by their abuser as subordinates and little better than property, according to an immigration court filing by the administration, and that domestic abuse is widely tolerated in their country. They must show that they could not find protection from institutions at home or by moving to another place within their own country. We welcome the new policy and will update you of developments in this area.

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I am not very proud to announce this but, ICE stated a few days ago that the San Diego County Sheriff’s Department is the first law enforcement body to implement the Secure Communities program, under which every individual booked into the three largest jails in San Diego County will have biometric-fingerprints checked in a DHS system for an immigration record.

Secure Communities, which is administered by U.S. Immigration and Customs Enforcement (ICE), streamlines the process by which ICE determines if an individual in the prison system is a removable criminal alien. Under the program, every individual booked into the three largest jails in San Diego County has their biometrics-fingerprints-checked in the U.S. Department of Homeland Security’s (DHS) biometric system for any immigration record. Prior to the advent of Secure Communities, as part of the standard booking process, these fingerprints were only checked for criminal history information in the U.S. Department of Justice’s (DOJ) biometric system.

If any fingerprints match those of someone in DHS’s biometric system, the new automated process notifies ICE and the San Diego intake site submitting the fingerprints. ICE evaluates each case to determine the individual’s immigration status and takes appropriate enforcement action after offenders complete their prison terms.

Last week, the Attorney General overruled the Board’s decisions in Matter of Lozada, and Matter of Assaad. The decision held that there is no Fifth Amendment right to counsel in immigration proceedings. Matter of Compean-Bangaly-J-E-C, 24 I&N, Dec. 710 (A.G. 2009).

When immigrants face possible deportation, they don’t have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don’t have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud. This decision could hurt thousands of immigrants seeking to stay in the U.S.

For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Justice Department has disagreed with that concept, and recently some courts upheld its view. The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer’s actions were “egregious,” and if the agency believes the immigrant has a valid claim to avoid deportation.

When the Illegal Immigration Reform and Immigrant Responsibility Act was passed by Congress in 1996, among its main goals was expelling and stiffening penalties against aliens who overstay visa allowances and improving security against illegal immigration on the borders and internally. While the law achieved some its objectives, it also spawned a population of immigrants, green-card holding “lawful permanent residents,” who could be more easily deported.

Key reason for this was a provision in the law that greatly expanded the list of crimes that qualified as “aggravated felonies” that would make aliens deportable. When the category of “aggravated felonies” was first added to immigration law in 1988, it encompassed only murder and trafficking in drugs or firearms. Those crimes along with a number of other violent and sex crimes remain as deportable offenses. But the 1996 law also added dozens of lesser offenses. These can include forgery, burglary, tax evasion, domestic abuse and any attempt to commit an aggravated felony. A number of crimes make aliens deportable if the sentence is a year or more, regardless of time served or whether the sentence was suspended. It even includes crimes that are misdemeanors in some states.

The legislation also reduced leeway for judges to consider providing relief. Issues such as immigration status, time lived in the U.S., existence of family who are citizens, ties to the community, or service to the U.S., including military, are not considered.

ILW.com recently published an interesting article by a former USCIS officer stationed at the London US Embassy, working on I-601 waivers. The question we all ask is whether officers exercise discretion when adjudicating 601 waivers, or are they following the law with respect to the extreme hardship standard.

Officer Heller explains: “When I was adjudicating I-601 waivers at the US Embassy in London my colleagues and I used to theorize on the element of discretion in waiver determinations. Some adhered to a strict constructionist view (discretion only comes into play once extreme hardship is established), others favored what I call a holistic approach (discretion, in a general sense, allows for a contextual assessment of hardship factors).”

He further stated: “In my experience, the holistic approach to 601 waiver adjudication was, in effect, a means of ratcheting the extreme hardship standard one way or another. As such, an individual deemed inadmissible on account of an overstay of one year and two months might enjoy a more relaxed standard than someone who overstayed five years. Similarly, an applicant who worked as a nurse might have an easier time of establishing extreme hardship than, say, a web designer (n.b. I said “applicant” and not “qualifying family member”). Considerations such as those suggested above are not really related to extreme hardship, but they are clearly relevant for assessing discretion.”