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Developing Better, Fairer Bond Hearings: Next Steps After Lora v. Shanahan

By Andrea Saenz The Second Circuit’s recent decision in Lora v. Shanahan, No. 14-2343-pr-, slip op. (2nd Cir. Oct. 28, 2015), gives immigration detainees a lot to be hopeful about, and gives scholars and advocates a lot of new questions to chew on. In Lora, the Second Circuit held that noncitizens cannot be subjected to prolonged no-bond detention under INA § 236(c) while their deportation cases are pending, and therefore must be given a bond hearing within six months of their detention. As Alina Das wrote on this blog, the decision represents a resounding victory for core due process [...]

Posted by César on November 10, 2015 on 4:00 am Leave a Comment
Filed Under: 2d Circuit Court of Appeals, bond, burden, guest blogger, imprisonment, mandatory detention

BIA continues eroding categorical approach

The Board of Immigration Appeals continued its efforts to resist the principal means of analyzing statutes that the Supreme Court requires in a case involving a drug conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014). Board Member Pauley wrote the panel’s decision. This case involved an LPR convicted via guilty plea of “sale of illegal drugs” in Connecticut. The immigration judge found that this conviction constituted illicit trafficking, a variety of aggravated felony, INA § 101(a)(43)(B), and a controlled substance offense, INA § 237(a)(2)(B)(i). On appeal, the migrant argued [...]

Posted by César on September 30, 2014 on 4:00 am Leave a Comment
Filed Under: aggravated felony, Board of Immigration Appeals, burden, categorical approach, controlled substance offense, illicit trafficking, Uncategorized

BIA: Important development in categorical approach analysis & firearms offense

The BIA issued an important opinion detailing the latest turn in the categorical approach analysis. Specifically addressing the crime of violence type of aggravated felony and the firearms offense basis of removal, Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Pauley, Malphrus, and Greer, Board Members), promises to affect crimmigration law analyses across the board. Board member Pauley wrote the panel’s opinion. This case involved an LPR convicted of violating Utah’s felony discharge of a firearm offense, Utah Code § 76-10-508.1. DHS successfully argued before an immigration judge [...]

Posted by César on August 7, 2014 on 4:00 am Leave a Comment
Filed Under: aggravated felony, Board of Immigration Appeals, burden, categorical approach, crime of violence, firearms offense

BIA: Entry based on lying about USC status isn’t “admission”; conviction for making materially false statement to government official is CIMT

The BIA held that a person who enters the United States using a passport obtained after lying about being a United States citizen has not been “admitted” for immigration law purposes, and a conviction for lying to the State Department to receive a passport is a crime involving moral turpitude. Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision. This case involved a non-citizen who entered the USA on a student visa, then obtained a U.S. birth certificate that she used to apply for and receive a U.S. [...]

Posted by César on October 17, 2013 on 9:00 am 87 Comments
Filed Under: admission, Board of Immigration Appeals, burden, crime involving moral turpitude, fraud or deceit

Detention & Due Process in S. 744: The NYC Bar Speaks Out, Part 2

Mark Noferi Yesterday, I highlighted the New York City Bar Association immigration committee’s advocacy for universal appointed counsel in immigration proceedings, as well as City Bar’s analysis of Senate Judiciary Committee amendments that would roll back the limited right provided by S. 744. (City Bar’s April 24 letter supporting appointed counsel is available here, and its statement here). Today, I’ll highlight City Bar’s advocacy for reduced detention, and its analysis of amendments that, similarly, roll back the advances provided by S. 744. (City Bar’s second letter supporting [...]

Posted by César on May 15, 2013 on 9:00 am 37 Comments
Filed Under: bond, burden, commentaries, Congress, guest blogger, mandatory detention, proposed legislation, right to counsel

BIA: Admitted person must be charged as deportable

The BIA held that a noncitizen who was admitted into the United States must be charged as deportable rather than inadmissible to be properly placed into removal proceedings. Matter of D-K-, 25 I&N Dec. 761 (BIA April 12, 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s opinion. This case involved an individual who was admitted into the U.S. as refugee. He was denied adjustment of status, then convicted of distributing cocaine within 1,000 feet of a school. On the basis of this conviction, DHS initiated removal proceedings. After first charging the [...]

Posted by César on March 12, 2013 on 9:00 am 24 Comments
Filed Under: admission, Board of Immigration Appeals, burden

1 client, 2 wins: Successful Padilla claims in crim & immigration courts

Taking an expansive approach to client representation, attorney Carlos M. García recently vacated a conviction that had served as the basis for removal, then headed to immigration court where he successfully moved to terminate removal proceedings. García, an attorney at García & García Attorneys at Law (this blog’s patrocinador and my brother), relied on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in the Texas district court, then fended off DHS’s attempt to remove his client on the basis of the “reason to believe” the client was a drug trafficker ground of removal. The state district [...]

Posted by César on July 10, 2012 on 9:00 am 5 Comments
Filed Under: Board of Immigration Appeals, burden, controlled substance offense, habeas, Immigration Court, Padilla v. Kentucky, post-conviction relief, right to counsel, state court, Texas state court

BIA: Burden to show possession with intent to distribute isn’t aggravated felony is on respondent; says categorical approach inapplicable

The BIA held that the burden of proof rests with the noncitizen respondent to show that a possession of marijuana with intent to distribute conviction is not an aggravated felony because it involved a “small” amount of the drug, and that the respondent may prove this by using evidence outside the record of conviction. Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (Pauley, Mullane, and Guendelsberger, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR convicted of possession with the intent to give or distribute less than one-half ounce of [...]

Posted by César on May 17, 2012 on 9:00 am 43 Comments
Filed Under: aggravated felony, Board of Immigration Appeals, burden, conspiracy, controlled substance offense, illicit trafficking

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