With much fanfare, Senators Richard Durbin (D-Illinois) and Linsey Graham (R-South Carolina) introduced a revamped version of the Dream Act yesterday. White House officials have already said that the president is unlikely to support it. But with a president who shifts positions constantly, it’s worth taking seriously the prospect that the Dream Act of 2017, S. 1615, moves forward. As with the earlier version of the Dream Act that came a handful of votes away from landing on President Obama’s desk and with DACA, the Dream Act of 2017 would exclude people who have encountered the criminal [...]
BIA creates rebuttable presumption for cancellation of removal applicants
By Alex Sheppard On October 28, 2015, the Board of Immigration Appeals (BIA) decided the companion cases Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015), and Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), both of which addressed the burden of proof that rests on cancellation of removal applicants who are demonstrating continuous physical presence, a requirement for non-lawful permanent residents seeking this form of relief from removal. In the decisions, the BIA held that “[W]here an alien had the right to appear before an Immigration Judge, evidence that photographs [...]
9th Circuit: Physical Presence Stops Accruing Upon Receipt of Notice to Appear
By Sarah Flinn A recent decision by the U.S. Court of Appeals for the Ninth Circuit followed the trend set by the Second, Fourth, Sixth, and Seventh Circuits in determining that continuous physical presence for purposes of cancellation of removal stops accruing when the petitioner receives a Notice to Appear (NTA), regardless of whether the notice includes a date and location for the removal hearing. Moscoso-Castellanos v. Lynch, No. 12-72693, 2015 WL 5933279, at *3 (9th Cir. Oct. 13, 2015). Jorge Mario Moscoso-Castellanos, a native and citizen of Guatemala, arrived in the United States [...]
5 Cir rejects BIA’s limitations on marijuana personal use exception
The U.S. Court of Appeals for the Fifth Circuit recently pushed back against the BIA’s efforts to expand the range of low-level drug offenses that can result in removal. In Flores Esquivel v. Lynch, No. 13-60326 (5th Cir. October 1, 2015), a divided panel of the Fifth Circuit took issue with the Board’s narrow construction of a key exception to the controlled substance offense basis of deportation. This case involved an LPR convicted of two misdemeanor possession of marijuana crimes in Texas: one in 2003 and the other in 2011. The first consisted of getting caught as an 18-year-old with a [...]
BIA: NTA stops time for cancellation of removal only if it’s used to launch removal proceedings
The BIA recently returned to a critical and deceptively complicated part of cancellation of removal, the stop-time rule, with a fairly narrow but important decision. Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015). Migrants are eligible for relief from removal if they can meet certain durational requirements, among other criteria. Lawful permanent residents must be able to show that they have continuously resided in the United States for at least seven years. INA § 240A(a)(2). Other migrants must show that they have been continuously physically present in the United States for at least ten [...]
9 Cir: Shifts longstanding drug paraphernalia case law to follow Supreme Court
The U.S. Court of Appeals for the Ninth Circuit recently held that a drug paraphernalia conviction constitutes a controlled substance offense only if the conviction involved a substance criminalized by federal drug laws. Madrigal-Barcenas v. Lynch, No. 10-72049, slip op. (9th Cir. August 10, 2015). In doing so, the Ninth Circuit adjusted a robust body of case law to conform with the U.S. Supreme Court’s decision in Mellouli v. Lynch, 135 S. Ct. 2828 (2015), a case that I and a team of guest bloggers covered in detail on crImmigration.com. This case involved a migrant convicted of possession [...]
5th Circuit: Border wave-through is an admission for cancellation purposes
By Sarah Flinn A recent decision by the U.S. Court of Appeals for the Fifth Circuit held that admission to the U.S. is met by a physical wave through the port of entry by an immigration official. Further, in relation to the INA provision governing cancellation of removal for lawful permanent residents, § 240A(a), the wave-through admission is valid for all immigrants, whether documented or not. Tula Rubio v. Lynch, No. 14-60183, slip op. (5th Cir. May 21, 2015). In 1992, in very common circumstances, Ramiro Constantino Tula Rubio, age 4, entered the United States as a passenger in a car [...]
Illegal Entry Convictions Interrupt Continuous Physical Presence
By Sarah Flinn The Board of Immigration Appeals (BIA) recently affirmed an immigration judge’s decision to deny an application for cancellation of removal due to a break in the necessary ten year continuous physical presence requirement. Matter of Velasquez-Cruz, 26 I&N Dec. 458 (BIA 2014). The migrant in this case, Ms. Rosa Isela Velasquez-Cruz, was apprehended in the United States twice within just a few days. Subsequent to apprehensions on August 9, 2004 and August 11, 2004, Ms. Velasquez-Cruz pled guilty to illegal entry in violation of section 275(a)(1) of the Immigration and [...]