OC Immigration Attorney

The Department of Homeland Security is reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records.

According to Richard Rocha, an Immigration and Customs Enforcement spokesman, the review is part of the agency’s broader, nationwide strategy to prioritize the deportations of illegal immigrants who pose a threat to national security and public safety. Rocha declined to provide further details.

Critics assailed the plan as another sign that the Obama administration is trying to create a kind of backdoor “amnesty” program. An immigration attorney who was briefed on the effort by Homeland Security’s deputy chief counsel in Houston, said DHS confirmed that it’s reviewing cases nationwide, though not yet to the pace of the local office. However, they are following general guidelines that allow for the dismissal of cases for defendants who have been in the country for two or more years and have no felony convictions. In some instances, defendants can have one misdemeanor conviction, but it cannot involve a DWI, family violence or sexual crime.

Opponents of illegal immigration were critical of the dismissals. However, immigrants who have had their cases terminated are frequently left in limbo, and are not granted any form of legal status. These illegal immigrants still have no work permits and Social Security Numbers. ICE is not going to proceed with their removal from the United States. However, they are still here illegally.

In a June 30 memo, ICE Assistant Secretary John Morton outlined the agency’s priorities, saying it had the capacity to remove about 400,000 illegal immigrants annually. The memo outlines priorities for the detention and removal system, putting criminals and threats to national security at the top of the list. Recently, ICE officials provided a copy of a new policy memo from Morton dated Aug. 20 that instructs government attorneys to review the court cases of people with pending applications to adjust status based on their relation to a U.S. citizen. Morton estimates in the memo that the effort could affect up to 17,000 cases.

Records show that about 47,000 people have been removed or deported from the U.S. after the Homeland Security Department sifted through 3 million sets of fingerprints taken from bookings at local jails.

Additionally, according to government data obtained by immigration advocacy groups that have filed a lawsuit, about one quarter of those deported from the U.S. did not have criminal records. At issue is a fingerprint-sharing program known as Secure Communities that the government claims to be focused on getting rid of the “worst of the worst” criminal immigrants from the U.S.

However, Immigration and Customs Enforcement (ICE) who divides crimes into three categories, with Level 1 being the most serious, has mostly deported committed Level 2 or 3 crimes and non-criminals.

Peter Markowitz, director of the Immigration Justice Clinic at Benjamin N. Cardozo School of Law in New York, said that ICE has pulled a bait and switch, with local law enforcement spending more time and resources facilitating the deportations of bus boys and gardeners than murderers and rapist.

Furthermore, Markowitz’s clinic, the National Day Laborer Organizers Network and the Center for Constitutional Rights had requested and sued for the statistics. Immigration and Customs Enforcement released some of the documents late Monday.

Richard Rocha, an Immigration and Customs Enforcement spokesman, said non-criminals still may be people who have failed to show up for deportation hearings, who recently crossed the border illegally or who re-entered the country after deportation. He also said it’s important to remember that more people commit crimes that are considered Level 2 and 3, and that Secure Communities is beneficial for ICE, state and local law enforcement; helping to identify and remove convicted criminal aliens not only from the communities, but also from the country.

The Obama administration wants Secure Communities operating nationwide by 2013.

As of Aug. 3rd, 494 counties and local and state agencies in 27 states were sharing fingerprints from jail bookings through the program.

From October 2008 through June of this year, 46,929 people identified through Secure Communities were removed from the U.S., the documents show. Of those, 12,293 were considered non-criminals.

Cancellation of Removal for non-lawful permanent residents is a form of relief from removal for aliens currently in the United States illegally. Cancellation of removal allows aliens to stay in the U.S. and avoid separation from their families if they meet certain requirements and warrant a favorable exercise of discretion. However, only a certain number of grants may be issued per fiscal year.

The Immigration and Nationality Act limits the number of aliens whose removal may be canceled and who may adjust status to 4,000 per fiscal year. The numerical cap applies only to non-LPR cancellation cases, and does not effect lawful permanent resident cancellations. INA 240A(e)(1)

Conditional grants of cancellation pending the availability (under the numerical cap) are not permitted for persons after FY 1998. 8 C.F.R. §1240.21(c)(1). Immigration judges must reserve their decision on potentially approvable cases until an approval is numerically available. Judges do not have to reserve their decision if they are certain the applicant is ineligible.

If the alien applies for and is granted another form of relief, such as asylum or withholding, the cancellation application shall be denied as a matter of discretion. 8 C.F.R. §1240.21(c)(2). Persons previously granted conditional cancellation (prior to fiscal year 1998) maintain their conditional status until the numerical limitation is available. They may travel during the conditional period. 8 C.F.R. §§1240.21(b)(3), (5).

If you are considering cancellation of removal, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally discuss your situation with you and help you decide if cancellation of removal is right for you.

The Office of the Chief Immigration Judge (OCIJ) regularly monitors immigration judge (IJ)
performance and conduct through EOIR’s performance management program, and through its
daily supervision of the courts. In instances where concerns regarding an immigration judge’s
conduct arise, the OCIJ is committed to ensuring that any allegations are investigated and
resolved in a fair and expeditious manner.

Complaints against IJs may be initiated in one of two ways.

First, an individual or group may
file a formal complaint with either the Assistant Chief Immigration Judge for Conduct and
Professionalism (ACIJ C/P) or the appropriate supervisory Assistant Chief Immigration Judge
(ACIJ). The complaint may be communicated either in writing or orally, and it may be
anonymous. A written or oral complaint must contain at least a brief statement describing the
IJ’s alleged conduct that gave rise to concern.

Second, OCIJ may itself become aware of information that suggests an IJ may have engaged in
inappropriate conduct. Such information may come to the attention of OCIJ in a variety of
circumstances including, but not limited to, news reports, referrals from other components or
agencies, such as the Board of Immigration Appeals or Office of Immigration Litigation, or
routine reviews of agency and court decisions.

Upon the receipt or identification of a complaint, OCIJ will assign a number to the complaint and
create an entry for it in OCIJ’s complaint tracking database. When the complaint came from an
identifiable complainant who has provided contact information, OCIJ will acknowledge its
receipt of the complaint.

If you are currently in deportation or removal proceedings in immigration court in Los Angeles or San Diego, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally discuss your case with you and help you better understand the options available to you.

According to a list recently released by the federal government, more than 350 immigrant detainees in Los Angeles have been held in detention for more than six months while fighting deportation.

The list of names was turned over to the American Civil Liberties Union of Southern California last month as part of a class-action lawsuit in U.S. District Court in Los Angeles. The ACLU is battling for the right of detainees held for six months or more to have hearings on whether they can be released from custody while their cases are pending.

The U.S. Department of Justice and U.S. Immigration and Customs Enforcement declined to comment on the lawsuit. The department opposed releasing the names but was ordered to do so by a federal judge. Its lawyers are continuing to oppose the bond hearings.

Ahilan Arulanantham, who directs the immigrants’ rights and national security program for the ACLU of Southern California, said he was shocked that so many immigrants were being held in detention for longer than six months.

There are about more than a thousand immigrant detainees in the area, and at least 30% were never represented by an attorney.

The team of attorneys is sending letters to its clients. Many of the class members are seeking asylum and some have been held for years.

One of the class members, Damdin Borjgin, a Mongolian man seeking asylum in the United States, has been in custody at Mira Loma Detention Center in Lancaster since November 2007. Borjgin said he has never had a hearing to see if he would be eligible for release.

“I didn’t think I would be locked up in the jail for this much time,” Borjgin said through an interpreter in a recent interview. “I am living here as a prisoner. My rights are limited.”
Afraid for his safety, he came to the United States, where he was detained at Los Angeles International Airport and taken to the detention center.

Borjgin, who did not have an attorney, lost his case in Immigration Court and at the Board of Immigration Appeals. The case now is pending in the U.S. 9th Circuit Court of Appeals.

Currently, most immigrant detainees are not entitled to bond hearings: foreigners that are arrested upon arrival in the United States; foreigners who have committed certain crimes; or foreigners who have lost their cases and have final orders of deportation.  However, detainees who cannot be deported within six months of the conclusion of the case may be entitled to be released.

Arulanantham said that Borjgin might have never been placed behind bars in the first place. Immigration officials now release arriving asylum seekers from detention if they have a credible fear of persecution, prove their identity and pose neither a flight risk nor a danger to the community.

“ICE’s detention capacity is not unlimited,” said Virginia Kice, spokeswoman for Immigration and Customs Enforcement. “We want to ensure we’re using our detention resources to keep criminals and other dangerous aliens in custody while we seek their removal from the country.”

The change was part of an overhaul of the detention system announced last year. John Morton, the chief of the immigration agency, said he would make immigration detention less reliant on prisons and jails and more specifically designed for civil detainees.

Since the announcement, the agency has reduced the number of detention facilities nationwide and canceled contracts at 10 sites because of reported problems. Visitation, recreation and legal access also have been expanded at some facilities.

If you are someone you know is being detained in Lancaster’s Mira Loma facility, Otay Mesa or another detention facility, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will discuss your situation with you and help you better understand your options.

My client’s deportation proceedings were terminated by the Immigration Court in Los Angeles this morning, which means she will not be subject to removal and will not be forced to return to the Los Angeles Immigration Court again. The Immigration Judge terminated the deportation case because my client was approved for VAWA a few months ago, which entitles her to keep her green card and lawful permanent resident status.

My client was married to an abusive husband for several years. He was physically and emotionally abusive, and he manipulated her into staying in the relationship because he threatened to have her deported if she ever spoke to the police. We spent months preparing a comprehensive and convincing VAWA case. We filed for VAWA in late 2008, and the case was approved in early 2010.

Unfortunately, this scenario occurs all the time in the United States. A dramatic power imbalance exists if the US citizen spouse decides to take advantage of the non-citizen spouse’s situation. Many US citizen spouses treat their alien spouses as servants and order them to do anything and everything using threats of deportation. Many abusive spouses beat and emotionally abuse their spouses, and the alien victims are afraid to report the crimes to the police due to fear that they will be arrested and deported, or that the police will believe a US citizen over a foreigner.

The Violence Against Women Act (VAWA) provides several immigration benefits to abused spouses and children of US citizens and lawful permanent residents. VAWA was passed into law in 1994. VAWA provides lawful permanent resident status to spouses and children that have been battered by or subjected to extreme cruelty from the US citizen or lawful permanent resident spouse. Contrary to popular belief, abused male spouses are equally entitled to the immigration benefits provided by VAWA.

If you or someone you know is an alien victim of domestic violence, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally discuss your case with you during a confidential consultation. The Nunez Firm has helped countless domestic violence victims obtain green cards and break away from their dependence on their abusive spouses.

The US Supreme Court released its opinion on Padilla v. Kentucky today. The Court held that criminal defense attorneys have a duty to correctly advise alien defendants of the deportation consequences associated with pleading guilty to a charged crime. The Court pointed out that the deportation consequences for some criminal charges might be unclear or uncertain, and, in those situations, the criminal defense attorneys’ duty to inform was more limited. However, the Court stated “when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”

The Padilla Court expressly struck down the argument that criminal defense attorneys should only be dubbed ineffective if the affirmative advice given is incorrect. The Padilla Court stated that “it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available.”  

Additionally, the Supreme Court stated that deportation cannot be considered a collateral consequence of a guilty plea.

This case is important because many aliens with lawful permanent resident status plead guilty to criminal charges without realizing that they will be deported if they plead guilty. Many aliens do not realize that negotiating with the District Attorney and making minor changes to the plea agreement can prevent the alien from being deported or keep certain relief options, such as cancellation of removal, available.

This case will likely make it easier for many criminal aliens to reopen their criminal proceedings in an attempt to change their convictions and pleas.

If you are currently an alien in criminal proceedings, you should talk to an experienced immigration attorney about the immigration consequences resulting from a guilty plea. Contact The Nunez Firm to discuss your case. Managing attorney Jay Nunez will personally speak with you about your situation and options.

The immigration judge granted a motion to terminate deportation proceedings against my client. He was placed in deportation proceedings in the Los Angeles Immigration Court after his I-485 adjustment of status application was denied.

In 2008, USCIS denied his I-485 adjustment application stating that he failed to attend the adjustment interview with his wife. My client filed a motion to reopen with USCIS; however, USCIS transferred the case to the immigration court without making a decision on the motion to reopen. My client paid the required filing fee for the motion to reopen, and he was entitled to a decision on his motion to reopen. Today, the immigration judge in Los Angeles agreed that my client deserved a decision on his motion to reopen, and she terminated the deportation case and transferred the case back to USCIS.

Now, USCIS will hopefully reopen my client’s case and grant his adjustment of status to lawful permanent resident based on his marriage to a US citizen.

If you are currently in deportation proceedings in Los Angeles or San Diego, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will meet with you personally and help you understand the options available to you.

An Orange County client that was detained in the Otay Mesa CCA detention facility in Eastern San Diego was granted cancellation of removal on Friday afternoon.

He was originally detained in September 2009 after his second conviction for a crime involving moral turpitude. Although he was eligible for removal and placed in deportation proceedings, he was eligible for cancellation of removal if we could convince the judge that he deserved to stay in the United States.

My client is a lawful permanent resident for over 40 years and since the age of six. His entire family is in the United States, and he has only visited his home country of Jordan on two occasions. Despite his criminal convictions, he is an upstanding member of his community known for being an excellent carpenter and always willing to help his friends and family when they are in need.

The judge agreed that my client deserved cancellation of removal and even stated that he was the most sincere and remorseful respondent she had ever come across. The government attorney echoed the judge’s statements.

In cancellation of removal cases, the judge weighs several factors when deciding whether to grant or deny the application. Respondents should show remorse for any crimes committed and hold themselves responsible for their convictions. If a respondent tries to convince the judge that the conviction was not his/her fault, the judge is not likely to grant the cancellation application.

If you are currently facing deportation and wish to discuss your case and the possibility of cancellation of removal, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will discuss your case thoroughly and help you understand your situation.

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.