OC Immigration Attorney

A federal appeals court ruling Monday created the possibility that Guatemalan women could qualify for political asylum in the U.S. because of the high female murder rate in the Central American country.

The 9th U.S. Circuit Court of Appeals issued a strongly worded ruling reversing the deportation orders of two immigration courts that such a claim applies too broadly. The San Francisco-based court ordered the immigration judges, who work in the U.S. Department of Justice, to reconsider granting asylum to Lesly Yajayra Perdomo, an illegal immigrant in her mid-30s who settled in Reno, Nev.

Most important, the court ordered the Board of Immigration Appeals to determine whether all Guatemalan women can qualify, a decision which would open the door to similar claims from other countrieswith high female murder rate in Central America,  such as El Salvador, Honduras and others with history of widespread gender abuse.

This is the first such case to reach this high in the United States’ court system, which has grappled with determining gender-based claims for asylum.

Perdomo followed her mother to the U.S. in 1991 when she was 15 and settled in Reno, where she graduated high school and found work in the health care industry.

In 2003, the Immigration and Naturalization Service began deportation proceedings and she applied for asylum the next year citing Guatemala’s poor record of investigating and solving the hundreds of murders of women annually. The appeals court noted that the Board of Immigration, which rejected Perdomo’s asylum petition, has never addressed whether gender itself could be the basis for an asylum claim.

On Monday, the appeals court said past decisions suggest that women in Guatemala may qualify for asylum, which includes citizenship and is granted to those showing they were persecuted because of religion, political beliefs, race, nationality or membership in a particular social group.

Perdomo asked the court to include Guatemalan women as a “particular social group” eligible for asylum.

“While we have not held expressly that females, without other defining characteristics, constitute a particular social group, we have concluded that females, or young girls of a particular clan, met our definition of a particular social group,” Judge Richard Paez wrote for the unanimous three-judge panel.

Unless there is an appeal, the case goes back to the Board of Immigration Appeals to determine if Perdomo should be granted asylum.

The American Civil Liberties Union and a coalition of civil rights groups filed a class action lawsuit today in the U.S. District Court for the District of Arizona challenging Arizona’s new law which authorizes police to demand “papers” from people who they suspect are not legally in the U.S.

The coalition filing the lawsuit includes the ACLU, MALDEF, National Immigration Law Center (NILC), and the National Association for the Advancement of Colored People (NAACP), ACLU of Arizona, National Day Laborer Organizing Network (NDLON) and the Asian Pacific American Legal Center (APALC) – a member of the Asian American Center for Advancing Justice.

The lawsuit charges that the Arizona law unlawfully interferes with federal power and authority over immigration matters in violation of the Supremacy Clause of the U.S. Constitution; invites racial profiling against people of color by law enforcement in violation of the equal protection guarantee and prohibition on unreasonable seizures under the 14th and Fourth Amendments; and infringes on the free speech rights of day laborers and others in Arizona.

One of the individuals the coalition is representing in the case, Jim Shee, who is a U.S.-born 70-year-old American citizen of Spanish and Chinese descent. Shee asserts that he will be vulnerable to racial profiling under the law, and that, although the law has not yet gone into effect, he has already been stopped twice by local law enforcement officers in Arizona and asked to produce his “papers” to proof his legal presence in the U.S.

Another plaintiff, Jesus Cuauhtémoc Villa, is a resident of the state of New Mexico who is currently attending Arizona State University. The state of New Mexico does not require proof of U.S. citizenship or immigration status to obtain a driver’s license. Villa does not have a U.S. passport and does not want to risk losing his birth certificate by carrying it with him. He worries about traveling in Arizona without a valid form of identification that would prove his citizenship to police if he is pulled over. If he cannot supply proof upon demand, Arizona law enforcement is required to arrest and detain him.

Several prominent law enforcement groups, including the Arizona Association of Chiefs of Police, oppose the law because the law sends a clear message to communities of color that the authorities are not to be trusted, making them less likely to come forward as victims of or witnesses to crime.

The lawsuit was filed on behalf of labor, domestic violence, day laborer, human services and social justice organizations, including Friendly House, Service Employees International Union (SEIU), SEIU Local 5, United Food and Commercial Workers International (UFCW), Arizona South Asians for Safe Families (ASAFSF), Southside Presbyterian Church, Arizona Hispanic Chamber of Commerce, Asian Chamber of Commerce of Arizona, Border Action Network, Tonatierra Community Development Institute, Muslim American Society, Japanese American Citizens League, Valle del Sol, Inc., Coalicíon De Derechos Humanos, and individual named plaintiffs who will be subject to harassment or arrest under the law and a class of similarly situated persons.

According to Pablo Alvarado, Executive Director of NDLON day laborers have repeatedly defended their First Amendment rights in federal courts and successfully established their undeniable right to seek work in public areas. Moreover, Alvarado believes that Arizona’s effort to criminalize day laborers and migrants is an affront to the Constitution and threatens to disrupt national unity, and they are confident that federal courts will intervene to ensure the protection of their bedrock civil rights.”

Even prior to the passage of the statute, local enforcement of federal immigration law has already caused an increase on racial profiling of Latinos in Arizona. The ACLU, MALDEF and other members of the coalition have several pending lawsuits against government officials in Arizona because of civil rights abuses of U.S. citizens and immigrants.

In Cruz Rendon v. Holder, the Ninth Circuit Court of Appeals reversed Immigration Judge Anna Ho’s denial of a cancellation of removal application for non-lawful permanent residents. The Ninth Circuit found that Judge Ho’s refusal to grant a continuance for Cruz Rendon’s attorney to better prepare the cancellation case denied Cruz Rendon “a full and fair hearing.” Additionally, the Appeals Court found that Judge Ho was unreasonable in limiting Cruz Rendon’s testimony regarding her son’s learning disabilities.

Cancellation of removal for non-lawful permanent residents is a form of relief from deportation that allows undocumented aliens to remain in the United States if they meet certain criteria. The alien must have been physically present in the United States for not less than 10 years. The alien must have good moral character during the ten year period. The alien must not have been convicted of certain offenses. Finally, the alien must prove that removal/deportation from the United States would result in “exceptional and extremely unusual hardship” to the alien’s US citizen or lawful permanent resident spouse, parent or child.

Cruz Rendon entered the United States at some time after January 1, 1990. She had a four year old son with ADHD. A psychologist provided a report regarding the son’s ADHD. During Ms. Cruz Rendon’s testimony, she tried to explain the child’s learning disability and the difficulties associated with it, but Judge Ho continuously cut her off and disallowed the testimony stating “I believe the psychologist’s evaluation is much better than what this lady has to tell me.”

The Ninth Circuit criticized Immigration Judge Ho for not allowing a continuance as well. Ms. Cruz Rendon appeared at her court hearing on December 16, 2004 with her attorney for the first time. Immigration Judge Ho scheduled the trial for January 14, 2005, which allowed counsel only one month to prepare for the trial. (Keep in mind that most attorneys are allowed 4-12 months to prepare for trial.)

In the end, the Ninth Circuit held “We have no difficulty concluding that the denial of the requested continuance, in conjunction with the limitations placed upon her testimony, prevented Cruz Rendon from fully and fairly presenting her case. We likewise conclude that the outcome of the hearing may have been affected by these procedural deficiencies. The IJ stated repeatedly that Jose was ‘only’ four years old, and apparently formed the opinion that Jose might simply outgrow his problems. Had Cruz Rendon been permitted to offer more detail about Jose’s medical and educational issues, and had a continuance been granted to permit the further evaluation recommended by Jose’s psychologist, the IJ’s conclusion might have been different. Moreover, had Cruz Rendon been afforded time to obtain evidence regarding the schools in Mexico, the IJ might not have relied impermissibly upon her own unsupported opinion that Mexico ‘is really trying very hard to work on [special education].’ ”

If you are currently in deportation proceedings in immigration court, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will meet with you personally and explain your immigration situation and options to you thoroughly.

In Hamazaspyan v. Holder, the Los Angeles Immigration Judge denied Mr. Hamazaspyan’s motion to reopen an in absentia removal order on the grounds the immigration court sent notice to the address Mr. Hamazaspyan provided to the Department of Homeland Security, an address without an apartment number. However, the Immigration Court erred by not serving Petitioner’s counsel of record with the hearing notice. Serving a hearing notice on an alien, but not on the alien’s counsel is insufficient when an alien’s counsel of record has filed a notice of appearance with the immigration court. When such an appearance has been filed, the government must serve all notices to appear and all hearing notices on the respondent’s counsel of record. The Court does not reach the question whether an immigration judge may issue an in absentia removal order if it is uncontested that the alien received actual notice despite the government’s failure to send the notice to the alien’s counsel of record. The record here is undisputed that Hamazaspyan did not receive actual notice because the hearing notice was not handed to him in person, and did not reach him in the mail – it was returned to the immigration court by the postal service and labeled “undeliverable.” An in absentia removal order must be rescinded if the government sent notice of the time and place of a removal hearing by mail to an address provided by the alien, but (1) the BIA has not proven the alien received actual notice; (2) the alien has proven he is represented by counsel who had filed a notice of appearance as counsel of record with the immigration court before such notice had been sent; and (3) the government has not proven it sent notice to the alien’s counsel of record.

If you have been ordered removed from the United States in absentia, contact The Nunez Firm to discuss the possibility of reopening your case. Managing attorney Jay Nunez has an extensive track record of success in reopening in absentia cases. The Nunez Firm offers free consultations in order to discuss your case and the options available to you.

In U.S. v. Grageda, the Ninth Circuit held that a conviction under California Penal Code 245(a)(1) (Assault with a deadly weapon) is categorically a crime of violence as defined by Federal Sentencing Guidelines 2L1.2, which the Ninth Circuit held uses “materially” the same language as Section 16(a), which is the provision cited in the crime of violence definition cited in INA 101(a)(43)(F). The Ninth Circuit rejected an argument that California Penal Code 245(a)(1) is a general intent crime in which the “least touching” is sufficient to sustain a conviction.

If you or a loved one has been convicted of a crime and now face deportation or removal proceedings, contact The Nunez Firm to discuss your case during a free and confidential consultation.

Immigration Judge Anna Ho has drawn the ired of the Ninth Circuit once again. The Ninth Circuit Court of Appeal stated that the respondent in Shi v. Holder was “denied a full and fair hearing due to the IJ’s obvious bias. Throughout the hearing, IJ Anna Ho badgered Shi with loaded, pejorative questions and effectively abandoned her role as a neutral fact finder.”

This is not the first time Judge Ho has been reprimanded by the Ninth Circuit. In Rivera v. Ashcroft, Immigration Judge Anna Ho deported a US Citizen to Mexico after the man presented his birth certificate to the court proving he was born in the United States. The Ninth Circuit condemned Judge Ho for failing to act “as an impartial judge but rather as a prosecutor anxious to pick holes in the petitioner’s story.”

Immigration Judge Ho has drawn attention by the US Department of Justice as well. She was the subject of an investigation in approximately 2006, after then Attorney General announced that he was trying to rid immigration courts of abusive and intemperate immigration judges. IJ Ho told a female respondent, whose husband had recently died, that she had 120 days to remarry a US citizen or be prepared to leave the United States.

If you have received a Notice to Appear and are in deportation proceedings, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez can help you understand your options in trying to avoid deportation.

The Ninth Circuit held that an alien who is convicted of a simple possession offense who violates his/her probation but still manages to obtain an expungement under CPC 1203.4 remains convicted of a crime relating to a controlled substance for immigration purposes. The Court focused on the Federal First Offender Act’s (FFOA) language which provides that any person granted FFOA treatment who violates probation is no longer eligible to have their offense eliminated. The Court stated, “[W]e now make explicit that FFOA relief is not available when the person whose conviction is expunged has violated a condition of probation.”

The full Estrada v. Holder opinion.

The Ninth Circuit ruled that the immigration judge wrongfully denied asylum cases for three Chinese Christians who were persecuted and abused for helping North Korean refugees escape North Korea. It is very common for North Korean refugees to escape their home country by fleeing to China, then migrating to Southeast Asia and eventually travelling to Japan or South Korea. The trip is grueling, and it is difficult to get through China without being discovered.

According to the Ninth Circuit, the immigration judge incorrectly ruled that the Chinese nationals were being prosecuted for criminal acts rather than persecuted. This is a common issue in asylum cases. Many asylum seekers flee their home country to avoid being imprisoned or tortured. U.S. asylum law does not allow asylum if the individual is merely attempting to avoid legitimate prosecution (e.g. theft); however, if an individual is in danger of prosecution for an illegitimate reason (e.g. religious beliefs), asylum is available.

The Nunez Firm has vast experience with asylum cases. I have helped numerous clients obtain asylee status in the United States. Contact The Nunez Firm today to discuss your immigration situation, and I can help you determine if you have a potential asylum case.

January 27, 2009: 9th Circuit Case Law – The 9th Circuit issued an opinion, Anaya-Ortiz v. Mukasey, holding that an Alien conviction for being a felon in possession of a firearm under CA Penal Code § 12021(a)(1) qualifies as an aggravated felony for immigration purposes. This decision is important because any alien convicted of an aggravated felony is much more likely to be deported, and has far fewer options available to him/her in terms of avoiding deportation. Aliens with convictions for possession of firearms are not affected by this decision, and a simple possession of a firearm conviction (without having a prior felony conviction) is not an aggravated felony.  Full text of the opinion is available here.

To discuss your deportation proceedings and the options available to you, contact The Nunez Firm at 949-903-0088.