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.

Immigration judges have rejected asylum for people running from Central American gangs on the grounds that the threats were vague and that the petitioners’ lives did not appear to be truly at risk.

However, the cases of two Salvadorans, Benito Zaldívar, who was killed, and Nelson Benítez Ramos, have added new credibility to those claims. They have increased the pressure on the courts and the Obama administration to clarify asylum law so foreigners facing life-threatening dangers from gangs would have a chance at refuge in the US.

In Mr. Zaldívar’s case, the Board of Immigration Appeals found that he had failed to show that the gang he feared was specifically coming after him.  After his asylum petition failed, he was deported to El Salvador. His murder just two months later was the proof he foretold that his fears of the gang were not exaggerated.

Generally, legal standards for asylum in the United States are not easy to meet. Asylum seekers must show they have a “well-founded fear of persecution” because of their race, religion, nationality, political opinion or “membership in a particular social group.”

According to the United Nations Development Program, Central America is the most violent region of the world, with the exception of those regions where some countries are at war or are experiencing severe political violence. Additionally, the bloodshed in Central American came primarily from criminal gangs.

At the same time, American immigration judges, are always careful not to grant asylum to any flood, making it more difficult for Central Americans running from gangs. In a landmark ruling in 2008, the Board of Immigration Appeals denied a petition by three Salvadoran teenagers who fled recruitment by a gang called the MS-13, saying they had not shown that they were in more peril than Salvadorans in general.

“Gang violence and crime in El Salvador appear to be widespread, and the risk of harm is not limited to young males who have resisted recruitment,” the board found.

The judges created several legal hurdles for asylum seekers fleeing gangs, requiring them to prove that they are part of a “particular social group” that is widely recognized in their home society as being under attack, something like a persecuted ethnic minority.

Some federal appeals courts have taken the same view. Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, has repeatedly rejected the new standards as “illogical” and “perverse.”

In March, Attorney General Eric H. Holder Jr. formally declined to step in to clarify the administration’s position. Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Judiciary Committee, offered a refugee bill in March that would erase the recent court decisions and return to a less complicated standard that some people escaping gangs could hope to meet.

Meanwhile, Mr. Benítez, with a gang tattoo on his forehead, literally a marked man, waits in El Salvador after being deported last year.

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 Matter of Martinez, the Board of Immigration Appeals (BIA), which is the administrative appellate court for the Executive Office for Immigration Review, held a lawful permanent resident alien is eligible to seek special cancellation of removal for battered spouses under INA Section 240A(b)(2). The BIA analyzed the history of the Violence Against Women Act (VAWA) and concluded that special cancellation of removal for battered spouses should not be limited to aliens who do not currently have valid immigration status. The BIA held that special cancellation of removal should be available to lawful permanent residents as well.

This case will likely help lawful permanent residents who are ineligible for LPR cancellation of removal due to stop-time rule issues.

If you or a loved one is currently in immigration court proceedings, The Nunez Firm might be able to help you. Contact The Nunez Firm today to schedule a free and confidential consultation.

The Board of Immigration Appeals published an opinion in the Matter of Jose S. Martinez-Montalvo case. The case originated in Miami, Florida. The case citation is 24 I&N Dec. 778 (BIA 2009).

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no
jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of
status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732,
80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in
removal proceedings after returning to the United States pursuant to a grant of advance
parole to pursue a previously filed application. Matter of Artigas, 23 I&N Dec. 99 (BIA
2001), superseded.

If you or a loved one is in immigration court or has any other immigration matter, contact The Nunez Firm to discuss your situation and options. The Nunez Firm can help you.

Los Angeles Immigration Judge Ashley Tabaddor dismissed the deportation case against Gregorio Perez Cruz, which stemmed from a Van Nuys work site raid performed by Immigration and Customs Enforcement (“ICE”) agents. On February 7, 2009, armed ICE agents raided the Micro Solutions Enterprises factory in Van Nuys, California. ICE agents blocked the exits and arrested 138 employees. ICE detained Gregorio Perez Cruz for 18 hours without food and water, and Mr. Perez Cruz was forced to sleep on a concrete floor. 

Judge Tabaddor ruled that ICE failed to follow their own regulations and violated Mr. Perez Cruz’s rights when they failed to read Mr. Perez Cruz his rights and arrested him without reasonable suspicion that he was an illegal immigrant. ICE agents asked Mr. Perez Cruz several questions without informing him of his right to remain silent.

This decision may affect the cases of several others that were arrested during the same raid. As for Mr. Perez Cruz, he remains in a tenuous position. ICE is not permitted to continue their deportation case against him; however, he remains ineligible to obtain a green card.

ICE representative stated that they intend to appeal the decision to the Board of Immigration Appeals.

For the last 20 years, aliens in removal proceedings have had the right to effective assistance of counsel. This right allowed an alien to have his case reopened if his previous attorney performed ineffectively. The case Matter of Lozada provided the right to effective assistance of counsel based on the Due Process Clause of the Fifth Amendment. Since 1988, Matter of Lozada has provided a means by which aliens could reopen their case and fight an outstanding deportation order. That was until Attorney General Michael Mukasey’s last weeks in office.

On January 9, 2009, Attorney General Mukasey issued an opinion overruling Matter of Lozada and other pro-immigrant decisions. The Attorney General opinion is essentially a mandate to all immigration courts and the Board of Immigration Appeals on how to interpret the immigration laws. AG Mukasey declared that aliens in deportation proceedings do not have a right to government-appointed attorneys, and the due process clause’s guarantee of effective assistance of counsel only applies to state actors as opposed to private attorneys.

On Monday, the new Attorney General, Eric Holder, vowed to reexamine the Mukasey decision.

Mr. Holder’s decision on how to treat Matter of Lozada is extremely important. Matter of Lozada is oftentimes an alien’s last chance to avoid deportation. Far too often immigration attorneys make crucial errors while representing their clients; Matter of Lozada gives the alien respondent a chance to reopen the case to fix the errors made by the previous attorney.

If you have been ordered deported, call The Nunez Firm today to discuss whether you might have a chance to reopen your case. 949-903-0088

January 20, 2009:  The 9th Circuit Court issued an opinion regarding immigration law, and more specifically asylum law – Minasyan v. Mukasey, January 20, 2009. The one year rule for asylum applications lay at the heart of the decision. The Petitioner, Mushegh Minasyan, arrived in the United States from Armenia on April 9, 2001. On April 9, 2002, Mr. Minasyan filed his asylum application. Immigration law’s one year rule pertaining to asylum states that an alien seeking asylum must file the application for asylum within one year after the date of the alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The Board of Immigration Appeals held that the year began running the day Mr. Minasyan arrived in the United States; therefore, the Board ruled that the year ended on April 8, 2002, the day before he filed his asylum application. The 9th Circuit reversed holding that the year ended on April 9, 2002. Mr. Minasyan’s asylum application was valid, and it did not violate the one year rule.