(U.S. 9th Cir) In a prosecution for reentry following removal from the U.S., the dismissal of the indictment is affirmed where the order instructing defendant to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to reopen to seek voluntary departure.
Archive for the ‘Deportation & Removal’ Category
Aliens have the right to know their remedies
Tuesday, March 9th, 20102009 Immigration Court Highlights
Wednesday, March 3rd, 2010Citations are to the 2009 Statistical Yearbook
- Immigration court receipts increased by six percent between FY 2005
(370,007) and FY 2009 (391,829). Receipts in FY 2009 increased by 11
percent from FY 2008. (Figure 1, Page B2) - Immigration court completions decreased by less than one percent
between FY 2005 (353,082) and FY 2009 (352,233). However, completions
in FY 2009 increased by four percent from FY 2008. (Figure 1, Page B2) - Immigration judge decisions decreased by 12 percent between FY 2005
(264,785) and FY 2009 (232,212). (Figure 4, Page D1) - Mexico, Guatemala, El Salvador, Honduras, and China were the leading
nationalities of immigration court completions during FY 2009, representing
69 percent of the total caseload. (Figure 6, page E1) - Spanish was the most frequently spoken language for immigration court
case completions during FY 2009 at over 68 percent. (Figure 8, page F1) - Thirty-nine percent of aliens whose cases were completed in immigration
courts during FY 2009 were represented. The representation rate for FY
2005 and FY 2006 would be 48 percent if failure to appear completions
were removed from the data. (Figure 9, page G1) - The failure to appear rate decreased to 11 percent in FY 2009. (Figure 10,
page H1) - Asylum applications filed with the immigration courts decreased by 27
percent from FY 2005 to FY 2009. Affirmative receipts decreased by 19
percent while defensive receipts decreased by 45 percent. (Figure 13,
page I1) - In FY 2009, the New York, NY; Los Angeles, CA; San Francisco, CA;
Miami, FL; and Atlanta, GA, immigration courts received 54 percent of the
total asylum applications filed with the courts. (Table 6, page I3) - Six nationalities were among the top 10 nationalities granted asylum each
year during the five-year period FY 2005-09: China, Ethiopia, Haiti,
Colombia, India, and Albania. (Table 7, page J2) - The grant rate for asylum applications was 47 percent in FY 2009. The
grant rate was 55 percent for affirmative applications and 36 percent for
defensive applications. (Figures 16, 17, and 18, pages K1 and K2) - In FY 2009, the percentage of cases in which either asylum or withholding
of removal was granted was 56 percent. (Figure 19-B, page K5) - In FY 2009, 24 percent of proceedings completed at the immigration courts
had an application for relief. (Figure 22, page N1) - Fifty percent of FY 2009 immigration court completions involved detained
aliens. (Figure 23, page O1) - BIA had a 23 percent decrease in receipts between FY 2005 (42,725) and
FY 2009 (32,859) and a 29 percent decrease in completions during the
same period. (Table 17, page T2)
USSC Publishes Amendments to Sentencing Guidelines relating to aliens
Tuesday, February 23rd, 2010
The following are notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments; as they relate to non-citizens in federal court.
The Commission requests comment on when, if at all, the collateral consequences of a defendant’s status as a non-citizen may warrant a downward departure. There are differences among the circuits on this issue. Compare, e.g., United States v. Restrepo, 999 F.2d 640, 644 (2d Cir. 1993) (holding that none of the following collateral consequences are a basis for departure: (1) The fact that an alien is not eligible to be imprisoned in a lower-security facility or to participate in certain prison programs; (2) the fact that an alien will face deportation upon release from prison; and (3) the fact that an alien, upon release from prison, will be civilly detained until deportation), with United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994) (“[A] downward departure may be appropriate where the defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence.”).
The circuits appear to be in agreement, however, that the defendant’s status as a non-citizen is never a proper basis for departure when the defendant is sentenced under the illegal reentry guideline, Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States). See, e.g., United States v. Martinez-Carillo, 250 F.3d 1101, 1107 (7th Cir. 2001); United States v. Garay, 235 F.3d 230, 234 (5th Cir. 2000).
Should the Commission amend the guidelines to address when, if at all, a downward departure may be warranted on the basis of such collateral consequences? If so, how?
5. The Commission requests comment on when, if at all, a downward departure may be appropriate in an illegal reentry case sentenced under Sec. 2L1.2 on the basis of “cultural assimilation”, that is, the defendant’s cultural ties to the United States. Several circuits have held that such a departure may be warranted. See, e.g., United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998); United States v. Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001); United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998). Other circuits, such as the First and Tenth Circuits, have declined to rule on whether such a departure may be warranted. See, e.g., United States v. Melendez-Torres, 420 F.3d 45, 51 (1st Cir. 2005); United States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006).
Should the Commission amend the guidelines to address when, if at all, a downward departure may be warranted in an illegal reentry case on the basis of “cultural assimilation”? If so, how?
Dayton Officers ordered not to ask for immigration status
Thursday, January 14th, 2010Officers ordered not to ask for immigration status
By Lucas Sullivan | Monday, January 11, 2010, 04:30 PM
DAYTON – City police officers are now prohibited from asking the immigration status of a witness or victim of a crime in hopes it eases fears some ethnic groups have of law enforcement.
Police Chief Richard Biehl issued the executive order to his nearly 390 officers on Dec. 30 telling them, “Citizens must feel free to call for police services without fear of undue repercussions.”
Biehl’s order, aimed mostly at the Latino community, goes on to say a “Police presence within the entire community is extremely important to engender a feeling of safety and trust…”
The order is being cheered by the city’s Hispanic community, whose leaders have said many victims of crimes who can’t provide documented citizenship don’t report incidents to police because they fear being arrested or even deported.
“Reporting crimes helps everyone in the community and Chief Biehl wants to stop crime in the city,” said Sister Maria Stacy, director of the local Hispanic Catholic Ministry. “When victims are willing to report it, crime can be decreased.”
Biehl said he was made aware of issues some ethnic groups in the city, most notably the Latino population, had with his department and its policing practices.
“After talking with my command staff I realized that it is something we needed to study more and since it was such a lightning rod issue, to see if there were going to be any federal measures taken,” he said.
One issue in particular, arose nearly three years ago, Stacy said, when some in the Latino community felt officers were frequently making traffic stops and issuing tickets to Hispanics.
“Some people became very hesitant of the police and started to not report things because their experience was they would get into trouble,” Stacy said.
Dayton police union president Randy Beane disagrees with Biehl’s order, saying it circumvents federal law officers are asked to follow regarding illegal immigrants. Beane said some officers disagree with Biehl’s order so strongly they said they are willing to disobey it.
“We believe that anyone in this country should be legal or in the process of becoming legal,” Beane said. “In this age of terrorism it is our duty to make sure someone is legally living in this country.”
But Biehl maintains the directive, which is modeled after a recommendation from an organization of police chiefs from the country’s largest cities, actually helps his officers better police the community and seek out any terrorist element.
“We must protect this community and in doing so make sure all citizens, documented or undocumented, who are victims or witnesses to a crime feel they can talk to police,” Biehl said. “It is our duty to protect and serve everyone within the city limits.”
Community leaders estimate there are between 20,000 and 30,000 Latinos living in the city, concentrated mostly on the city’s east side. Dave Larson, a local immigration attorney said there could be between 5,000 to 10,000 undocumented Latinos in the city, “But that is merely a guess.”
Activists in the Latino community and law enforcement officials are eagerly awaiting new U.S. Census Bureau data that should provide a more accurate number of Latinos living in the city.
Stacy and other Latino leaders said they aren’t aware of any other local police departments issuing such an order because there isn’t enough of a population to warrant a directive.
The economy has inhibited, if not reversed, any population growth in the Latino community in the area, Stacy said.
As for any changes to policy or police practices, Biehl said he was not sure what, if any, would be implemented. But Biehl said he does not want his officers determining if a victim or witness to a crime is a legal citizen or even asking questions related to someone’s immigration status.
He added those who feel undocumented immigrants are not privy to services provided by taxpayers are “wrong-headed.”
Getting cooked in the squat
Thursday, January 7th, 2010Most people wait until everything is just right before they do anything. They refuse to go out on a limb where the fruit is. They are the people who end up like the cook’s biscuits.
Let me explain. When I was a small boy in Yazoo City, Mississippi, we lived next door to some rich folks. I know they were rich because they not only had a cook, but the cook had something to cook. In the 1930’s that was a sure sign of wealth. I was there for lunch one day, as I tried to be most every day. On this occasion, the cook brought out a pan of biscuits. Since they were no thicker than a silver dollar, I asked, “Maude, what happened to those biscuits?” She reared back, laughed, and said, “Well, those biscuits squatted to rise, but they just got cooked in the squat.”
From: “See You at the Top” by Zig Ziglar
Now what in the world does this have with getting a “green card” or any other immigration benefit in today’s environment? The current situation does not allow everybody to get their benefit in the United States. Some people are able to get what they want along with filing for a waiver at USCIS, others may have to go home and process through their consulate. Everything is not just right. Does this mean you should just wring your hands and wait for the law to change? Maybe not, we have met with many families and individual we have been able to help.
Please meet with an immigration attorney and find out what your options are, how long it will take and what it will cost. Then talk to the attorney about what happens if you do not do anything. Certain people will be better off not doing anything now, but other will find that they are eligible for benefits and can come out from living in the shadows.
11 Face Sham-marriage Charges in Columbus
Thursday, December 10th, 200911 Face Sham-marriage Charges Non-citizens sought improved immigrant status, agents say
Wednesday, December 9, 2009 3:05 AM
By John Futty
THE COLUMBUS DISPATCH
A group of central Ohioans arranged sham marriages for Eastern European immigrants attempting to evade U.S. immigration laws, according to a federal indictment unsealed yesterday.
Agents have arrested nine people accused of taking part in the scheme. Two others remained at large last night.
The conspirators allegedly charged about $17,000 for each arranged marriage, recruiting citizens willing to take a cut to marry non-citizens, prosecutors said.
The marriages were arranged beginning in 2007 “to lend the appearance of being legitimate marriages in order to assist non-citizens in fraudulently achieving a more favorable status with United States immigration authorities,” the indictment states.
“The non-citizens involved are from the former Soviet republics,” said Fred Alverson, a spokesman for the U.S. attorney’s office. “This occurred within a tight-knit community.”
The following defendants appeared yesterday in U.S. District Court in Columbus:
• Hasan Salohudtdinov, 28, of Dublin, charged with conspiracy, fraud and misuse of immigration documents.
• Dmitry Pani, 28, of Dublin, charged with conspiracy.
• Sviatlana A. Piskunova, 22, of Columbus, charged with conspiracy, fraud, marriage fraud and misuse of immigration documents.
• Laura Elizabeth Grace Scott, 20, of Columbus, charged with conspiracy and marriage fraud.
• Courtnie Susann Good, 20, of Columbus, charged with marriage fraud.
• Iskander Odilovich Tairov, 20, of western Franklin County, charged with marriage fraud.
• Brent James Woods, 25, of Columbus, charged with marriage fraud.
Salohudtdinov, Pani, Piskunova and Tairov were ordered held without bond by U.S. District Judge Algenon L. Marbley. Scott and Good were released on their own recognizance.
Djafar B. Sobirov, 29, of Columbus, and Ladawna Sharee Tackett, 20, of West Jefferson, both indicted for marriage fraud, were at large.
Agents also arrested Sobithon A. Mirzaey, 22, in New Orleans, and Elbek A. Saidjanov, 22, in Philadelphia. Both allegedly took part in sham marriages in central Ohio and are charged with marriage fraud and misuse of immigrant documents.
Prosecutors said the marriages took place primarily at the Columbus Wedding Services Chapel, 761 S. High St.
Marge Butler, who operates the business with her husband, said yesterday that she was unaware of the scheme.
“We are not required to ask for identification or ask any questions,” she said. “Regardless of what we think or feel, if they give us a valid marriage license, that’s it.”
Each count of conspiracy to commit marriage fraud and marriage fraud is punishable by up to five years in prison and a fine of up to $250,000. Foreign nationals face deportation after any prison time served.
Ohio BMV cancelling illegal immigrant vehicle registrations
Thursday, December 10th, 2009Franklin County Magistrate Pamela Browning last Monday morning declined to grant a preliminary injunction against the Ohio Bureau of Motor Vehicles to prevent them from cancelling vehicle registrations of nearly 45,000 cars & trucks largely driven by undocumented immigrants. Beginning yesterday, the Columbus Dispatch, it will be illegal for thousands of immigrants to drive on Ohio’s roads. The BMV is canceling their vehicle registrations for failing to prove they are legal U.S. residents. Police can stop those driving with revoked registrations, issue tickets and seize license plates. Drivers who cannot provide adequate identification risk going to jail, with undocumented immigrants also potentially facing deportation.
“BMV changes to weed out fraudulent registrations began on Aug. 24,” the article said, “the reforms being delayed for more than a year after former Public Safety Director Henry Guzman met with Latino business owners and then asked for improvements to the policy. BMV began a crackdown on Oct. 8, mailing out some 47,457 letters to those with questioned registrations instructing them to appear at BMV offices by yesterday and provide a state driver’s license, ID number, or a Social Security number so their identities could be verified.”
While the BMV’s letter said that registrations would be cancelled as of Dec. 8th , the BMV decided to wait until yesterday to take the action to provide those affected with a full 60 days notice, spokeswoman Lindsay Komlanc said.
reported
USCIS REVISES FORM I-601
Thursday, October 22nd, 2009USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility (Revision Date 04/06/09 N, OMB Expiration Date 04/30/11) to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found of the form’s instructions.
The new Form I-601 and its filing instructions, including instructions on where to file and applicable fees, can be found on our website at www.uscis.gov. In accordance with 8 CFR 103.7(c)(5), USCIS may waive the filing fee in an individual case based on the individual’s inability to pay, only if the individual filing the a Form I-601 is:
• An alien who in valid T or U nonimmigrant status;
• An approved VAWA self-petitioner; or
• An alien, seeking adjustment of status, to whom section 212(a)(4) of the Act does not apply, so that the alien is not required to prove that he or she is not likely to become a public charge.
Guidance on how to request a fee waiver can be found on our website at www.uscis.gov/feewaiver.
USCIS will continue to accept the previous version of the form, dated 10/30/08 Y, through November 20, 2009. Beginning November 21, 2009 USCIS will only accept the revised Form I-601, dated 04/06/09 N, and will reject all requests using previous editions of the form.
ICE DETENTION REFORM
Thursday, October 8th, 2009ICE DETENTION REFORM: PRINCIPLES AND NEXT STEPS
Secretary Napolitano Announces New Immigration Detention Reform Initiatives
Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced a series of new initiatives as part of the Department’s ongoing immigration detention reform efforts to enhance the security and efficiency of ICE’s nationwide detention system while prioritizing the health and safety of detainees.
The reform efforts address the seven major components of the detention system outlined in a comprehensive review conducted by Dora Schriro, the former ICE Office of Detention Policy and Planning Director, over the past several months, focusing on greater federal oversight, specific attention to detainee care, and uniformity at detention facilities.
Core Principles to Guide Long-Term Efforts:
ICE will prioritize efficiency throughout the removal process to reduce detention costs, minimize the length of stays and ensure fair proceedings;
ICE will detain aliens in settings commensurate with the risk of flight and danger they
present;
ICE will be fiscally prudent when carrying out detention reform;
ICE will provide sound medical care; and
ICE will ensure Alternatives to Detention (ATD) are cost effective and promote a high rate of compliance with orders to appear and removal orders.
One-Year Benchmarks:
Secretary Napolitano has also established one-year benchmarks for detention reform that will be completed by the end of fiscal year 2010: Review contracts for all detention facilities to identify opportunities for improvement and move forward with renegotiation and termination of contracts as warranted. Revise immigration detention standards to reflect the conditions appropriate for various immigration detainee populations; and Issue two competitive bids for detention facilities that will reflect all five core principles of immigration detention reform.
Immediate Reforms:
Secretary Napolitano and Assistant Secretary John Morton announced the following reforms on Oct. 6. Implementation will begin immediately.
Each of these reforms are expected to be budget neutral or result in cost savings through reduced reliance on contractors to perform key federal duties and additional oversight of all contracts.
Population Management
- Effective immediately, ICE will create a library of contracts for all facilities with which ICE has active agreements and centralize all contracts under ICE headquarters’ supervision. At present, the Office of Acquisitions at ICE headquarters negotiates and manages only 80 of the more than 300 active contracts for detention facilities. The remaining contracts are overseen by disparate ICE field offices and the Office of the Federal Detention Trustee.
- Effective immediately, ICE will aggressively monitor and enforce contract performance in order to ensure contractors comply with terms and conditions—especially those related to conditions of confinement. When confronted with repeated contractual deficiencies, ICE will pursue all available avenues for remedying poor performance, including termination of contracts.
- Cost: In the long term, this effort is expected to yield cost savings and a better managed and more efficient contracting process, though these initiatives may require additional resources at headquarters.
Alternatives to Detention (ATD)
- This fall, ICE will submit to Congress a nationwide implementation plan for the Alternatives to Detention Program (ATD).
- ICE will develop an assessment tool to identify aliens suitable for ATD.
- ICE will continue to work with the Department of Justice to expedite the adjudication of ATD cases to reduce costs.
- Cost: ATD costs substantially less per day than detention: the most expensive form of ATD costs only $14 per day compared to the cost of detention, which varies per facility but can exceed $100 per day.
Detention Management
- Effective immediately, ICE will devise and develop a risk assessment and custody classification, which will enable detainees to be placed in an appropriate facility.
- On Oct. 30, following the first meeting of the detention advisory group, Assistant Secretary Morton will host an industry day and begin market research about utilizing converted hotels, nursing homes and other residential facilities as immigration detention facilities for non-criminal, non-violent populations.
- Cost: Such facilities that are commensurate with risk are anticipated to save money over the long term, pending a comprehensive assessment.
Returning Green Card holders have a greater likelihood of going to immigration court
Tuesday, October 6th, 2009Beginning on October 1, 2009, there is a greater likelihood that returning Legal Permanent Residents (LPRs) with criminal convictions will be issued a Notice to Appear (NTA) at ports of entry versus a grant of deferred inspection. In addition, depending on the nature of the conviction, CBP staffing, and available detention bedspace, among other factors, it also is possible that more returning LPRs with criminal convictions will be detained. CBP confirmed, however, that deferred inspection for such returning LPRs is still an option. CBP explained that it modified its policy based on information reflecting that an appreciable percentage of those granted deferred inspection do not show up for such inspection. More guidance to the field will be forthcoming from CBP, but be aware of the likelihood of an increase in the number of LPRs being detained and/or issued NTAs at ports of entry. CBP confirmed that this policy already had been in place in Georgia and Florida.
Note that LPRs cannot be detained if they are in possession of evidence that proves that their conviction does not render them inadmissible pursuant to INA 212(a)(2).
