IMMIGRATION CASE LAW (recent and relevant)

• Right to Counsel
  
  
• In Absentia Orders of Removal
  
  
• Reopening
  
  
• Ineffective Assistance of Counsel
  
  
• Jurisdiction
  
  
• Reentry After Removal
  
  
• Labor Certification
  
  
• Crimes
  
  
• Asylum
  
  
• Child Status Protection Act
  
  
  

RIGHT TO COUNSEL

NINTH CIRCUIT COUT OF APPEALS grants Petition for review of a BIA order denying Guatemalan petitioner's application for cancellation of removal where petitioner was denied his statutory right to counsel. Mendoza-Mazariegos v. Mukasey, 12/6/07)

IN ABSENTIA

NINTH CIRCUIT COUT OF APPEALS grants Petition for review of a BIA order where a petitioner arrived late for his immigration hearing due to car trouble and was ordered removed in absentia. When petitioner arrived in court, the Immigration Judge was still in the courtroom. A petition for review of a decision denying petitioner's motion to reopen immigration proceedings after he was ordered removed in absentia is granted where: 1) petitioner arrived late to his immigration hearing due to his car's mechanical failure, but he was in the courtroom when the IJ was still on the bench, and thus, he did not fail to appear for the hearing; and 2) the IJ's failure to reopen or continue his case, even in the absence of exceptional circumstances, was an abuse of discretion. Perez v. Mukasey, No. 04-73029, 02/14/08)

REOPENING

NINTH CIRCUIT COUT OF APPEALS Ninth Circuit Court of Appeals held that the BIA abused its discretion when it denied the motion to reopen of an "arriving alien" who sought to apply for adjustment of status with USCIS. The BIA's sole reason for denying the motion was that it lacked jurisdiction over an adjustment application under the "interim regulations. (This case also deals with the BIA's standard of review for frivolous asylum claims.) Kalilu v. Mukasey, No. 06-75425, 02/14/08)

INEFFECTIVE ASSISTANCE OF COUNSEL

NINTH CIRCUIT COURT OF APPEALS grants Petition for review in cancellation of removal case where the petitioner was prejudiced by ineffective assistance of counsel evidenced by the filing of a "boilerplate brief" with irrelevant portions. Grigoryan v. Mukasey, No. 05-77020, 02/05/08

NINTH CIRCUIT COURT OF APPEALS grants Petition for review in cancellation of removal case where the petitioner was prejudiced by ineffective assistance of counsel. Molinar v. Mukasey, No. 04-73484, 04-75248, 01/24/08

JURISDICTION

NINTH CIRCUIT COURT OF APPEALS HOLDS THAT INA §242(g) barred District Court jurisdiction over Plaintiffs’ Bivens claim for false arrest because it arose “from the decision or action by the Attorney General to commence [removal] proceedings,” and an alternative habeas remedy addressing the injury was available under INA §242(e)(2). (Sissoko v. Rocha, 11/15/07).

This case deals with the jurisdiction of the Ninth Circuit pursuant to the Real ID act in adjudicating cases involving issues of law. The court held that it has jurisdiction over “questions of law” as defined in the Real ID Act which includes not only “pure” issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions oflaw and fact. This jurisdiction includes determining whether changed circumstances excuses the failure to file for asylum in one year. Ramadan v. Gonzalez, (9th Cir. 2007)

REENTRY AFTER REMOVAL

NINTH CIRCUIT COURT OF APPEALS HOLDS THAT ALIENS WHO HAVE BEEN DEPORTED AND/OR REMOVED AND THEN REENTER THE UNITED STATES UNLAWFULLY MAY NOT RELY IN INA §245(i) TO OBTAIN RESIDENCY. available (Duran Gonzalez v. DHS 11/19/07).

THE UNITED STATES SUPREME COURT HELD INA §241(A)(5) APPLIES TO PERSONS WHO ILLEGALLY REENTERED PRIOR TO THE EFFECTIVE DATE OF IIRIRA AND DID NOT TAKE ANY AFFIRMATIVE STEPS TOWARDS LEGALIZING STATUS, BUT EXPRESSLY DECLINED TO DECIDE WHETHER THE PROVISION APPLIES RETROACTIVELY TO PERSONS WHO MADE EFFORTS TO LEGALIZE STATUS. (FERNANDEZ-VARGAS V. GONZALES, 6/22/06).

CRIMES

(1)Any fact (including a fact contained in a sentence enhancement) that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt, if not admitted by the defendant, is to be treated as an element of the underlying offense, so that a conviction involving the application of such an enhancement is a
conviction for the enhanced offense. Matter of Rodriguez-Cortes,
20 I&N Dec. 587 (BIA 1992), superseded.
(2) The exception under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h) (2000), for an alien convicted of a single offense of simple possession of 30 grams or less of marijuana does not apply to an alien whose conviction was enhanced by virtue of his possession of marijuana in a "drug-free zone," where the enhancement factor increased the maximum penalty for the underlying offense and had to be proved beyond a reasonable doubt to a jury under the law of the convicting jurisdiction. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007), clarified.
Matter of MARTINEZ-ZAPATA, 24 I&N Dec. 424 (BIA 2007)

NINTH CIRCUIT COURT OF APPEALS grants Petition for review case where Lawful Permanent Resident charged with inadmissability for pre-IIRRIRA crimes. Camins v. Gonzalez, No. 05-70291, 08/28/07.

LABOR CERTIFICATION

Employer failed to establish bona fide job opportunity where it submitted documentation that it was able to pay the proffered wage, but did not show whether it had any employees. BALCA affirmed CO's denial of the labor certification application. Matter of Factor's Row, LLC, 2007-INA-00034 (1/16/08).

BALCA upholds the denial of an RIR case, where questions were raised concerning bona fide offer of employment, finding that "virtual office" for a job without a fixed worksite was more likely a fictionalized location for a job offering. It finds the application does not warrant a remand for supervised recruitment. Matter of PR Consultants Inc., 2007-INA-00066 (1/16/08).


BALCA concludes that regardless of O*NET job classification at issue, position is properly classified as Level II rather than Level I in pre-PERM labor certification application. It upholds CO’s denial, as the Employer failed to meet the prevailing wage. Matter of Plaza Express Car and Limo Service, 2007-INA-00008 (12/10/07).

ASYLUM

When an Immigration Judge issues a decision granting an alien's application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.§ 1231(b)(3)(2000), without a grant of asylum, the decision must include an explicit order of removal.
Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)

CHILD STATUS PROTECTION ACT

(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C.§ 1151(f)(1) (Supp. II 2002), which allows the beneficiaryof an immediate relative visa petition to retain his status as a "child" after he turns 21, applies to an individual whose visa petition was approved before the August 6, 2002, effective date of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for adjustment of status after that date.
(2) The respondent, whose visa petition was approved before August 6, 2002, and who filed his adjustment of status application after that date, retained his status as a child, and therefore an immediate relative, because he was under the age of 21 when the visa petition was filed on his behalf. In re Rodolfo AVILA-PEREZ 24 I & N Dec. 78 (BIA 2007).