Last week, I had two trials on the same day, a fairly rare occurrence for me. In the first case, we were successful in arguing that a lady who had been here without authorization for xx years deserved to stay in the country. She was the primary caretaker for her 83-year-old mother who suffered from depression, high blood pressure, and dementia. The key difficulty was that she had 9 other children, both in the United States and in her home country, with whom she could have stayed, should our client have been deported.
As an avid Apple product user, and sometimes tech geek, I was saddened today to learn of Steve Jobs' passing. However, I had earlier thought of writing a post tonight called: "How my iPad won my client's case".
I had a trial today for a woman who was married to a U.S. citizen who petitioned for her to come join him, and on that basis, she was granted permanent residence. Because they had not been married for two years yet, she was granted conditional residence, and had to file a petition to remove the conditions two years later to get "permanent", permanent residence. She did it originally by herself and was denied. Then she hired an attorney who did not follow through with her case (he was disciplined by his state bar for his poor performance on other cases). Finally, we had a trial scheduled for her in which we were meant to prove that she had entered into her marriage in good faith, even though it was later terminated by divorce.
There has been a lot of talk recently about the Immigration and Customs Enforcement (ICE) memorandum on prosecutorial discretion. The idea is that individual agents and attorneys for ICE can decide not to "prosecute" removability against an alien who they feel deserves that kind of compassion or use of discretion. The memo itself is not necessarily revolutionary, as the agents and attorneys always had that power. The importance is that, in light of the seriously increased immigration enforcement under the Obama administration, this memo reminds agents and attorneys of that authority, and I think, in so doing, recommends that they use it in appropriate situations.
I complained about the actions of an attorney for the government in the case of the South African asylum applicants. Ultimately, the ICE attorneys decided not to appeal our win, a kind of prosecutorial discretion that they utilized in favor of my clients, when no legal authority required them to. On the one hand, I feel some of the government actions in that case were not appropriate, however, the same office went out of their way to help my clients by not appealing and forcing them to expend additional resources and face the possibility of the Board of Immigration Appeals (BIA) overturning the decision and denying them asylum... so it cuts both ways.
Today, I had a case of a seriously mentally ill man who was granted cancellation of removal, and allowed to remain in the United States with his family who have been struggling to care for him for many years now. The government's attorney did not oppose the case, and in fact, agreed that he should be granted that relief without requiring any testimony or argument on the strength of the medical and psychological records submitted before trial. He didn't have to do that. He could have fought the case, put my client to his burden of proof, and challenged any incorrect or conflicting testimony (which for a guy with auditory hallucinations there certainly would have been some). But he used his prosecutorial discretion, not to agree not to prosecute the case, but to agree to his being granted relief. Even the memo doesn’t require or suggest that he take this action. In fact, had they simply terminated the case against him, his family would have been in a worse situation, because he would have gone back to the status he had before (none) which results in his not being eligible for many forms of financial and medical assistance that he needs. By doing exactly what he did, the government's attorney's prosecutorial discretion resulted in my client's entire family having a better life, and probably lessening the hardship his family has endured for the last 15 years.
Here are some upcoming events where Jonathan will be presenting on various immigration law topics, providing valuable information and training to other immigration attorneys across the country. If you are a member of the American Immigration Lawyers Association (AILA), come check by and say hi at one of the following:
October 19, 2011 at 12:00pm (EST) in Miami, Florida. Jonathan will be reprising his presentation from the AILA National Conference this past summer on the topic of Abandonment of Residence, how those with green cards can avoid losing them. The format is a monthly meeting of the South Florida chapter of AILA. Jonathan is very excited to be presenting again with Gary Endelman, one of the real experts in abandonment of residence issues. Mod erating the panel is the esteemed author of Kurzban's Immigration Law Sourcebook, Ira Kurzban. If you are thinking of practicing in the area of immigration law, it borders on malpractice not to own this book!
When someone is in removal (deportation) proceedings, they are required to appear at all their scheduled hearings, or else they will be ordered removed in absentia. Latin for "in the absence." Thank you, Missouri State University (Southwest Missouri State at the time) for the Latin lessons. The key problem with these kinds of orders are that the individual won't know they have been ordered deported, because they aren't there. How this generally happens is that the individual did not get notice, for one reason or another, and so whatever issue caused them not to get notice of the hearing in advance also results in their not getting a copy of the order of removal. Without that notice, they can not file an appeal within the required 30 days, or a Motion to Reopen within the required 90 days. Luckly, the law allows for a Motion to Reopen In Absentia orders to be filed at any time, if it is based on lack of notice. The problem here is proving lack of notice. If the government mailed the notices to the last given address, and it wasn't returned, there is an assumption that the notice was proper, though it can be refuted with specific evidence to the contrary.
How this normally comes up is where the person is arrested and taken into ICE (Immigrati/on and Customs Enforcement) either on a mission to enforce the old order, or through some other issue like arrest by local police. Then, the alien only has a very short amount of time to get the case reopened, because they are no longer required to be given any hearings, and are immediately subject to removal from the U.S. For those from Mexico, there is a flight back every Friday, and so it often means that someone may have less than a week from the date of arrest to the date of removal, depending on the circumstances. Luckily, where the motion is based on lack of notice, it carries with it an automatic stay of removal, keeping them in the country while a Judge decides whether or not to reopen their case.