Archive for September, 2009

Item two: Denial of a case for lack of prosecution right after the clients come to their interview

Sunday, September 20th, 2009

In the same mail delivery as the previous frustrating mail, comes this one.

A client comes to me after is arrested by Immigration and Customs Enforcement. She applied for a student visa extension and heard nothing from USCIS. Then ICE arrested her. (Years later, the extension is still pending).  We went to court a few times. The ICE attorneys were supposed to find out what happened to her student visa application. The woman was married to a United States citizen. When a person is in immigration court she is allowed to ask for a permanent residence visa based on marriage through the immigration court. The first step is for the U.S. citizen to file a petition on Form I-130. This cannot be done in immigration court. Rather, the petition must be filde with USCIS. We did this, filing it with the California Service Center. As for the immigration court case, when the ICE attorneys learned nothing after six months, in light of the fact that the client was married to a U.S. citizen and had no skeletons in her closet, the parties agreed to terminate the court case and allow her to file for permanent residence with USCIS. She did this after the court case was terminated. Then we waited for an interview. A few weeks ago we had one. The U.S. citizen husband was there and so was the foreign wife. The officer reviewed the file. There was some information about the I-130 in the file, but the actual I-130 petition was missing. I gave the officer a copy of the petition from my file.

After the interview, the officer asked for some more information from the husband, but otherwise was satisfied that the case was complete and the relationship was a bona fide one. This is the biggest hurdle in most cases. So we walked out knowing that the case was complete, the I-130 was consolidated with the adjustment of status application, and all that was needed was an extra document that we supplied two days later.

Then, the same day as the letter came from Detroit (Item 1, see the last blog posting), came a denial of the I-130 for lack of prosecution from the California Service Center. Just a couple of weeks earlier we were sitting in a USCIS office in lovely Chula Vista, California – petitioner and beneficiary – with a file reviewed and the file augmented with missing documents – and then USCIS 100 miles away from where the file was just reviewed, turns around and denies the I-130.

Now efforts have to be exerted to straighten this out with a very rigid and hard-to-penetrate bureaucracy. Just so lame. So time consuming. So frustrating.


A day’s mail: Item one

Sunday, September 20th, 2009

To illustrate the frustrations of immigration law, both for foreigners and their attorneys, allow me to describe what came in the mail one day last week. There were three items. Today I will describe the first one.

Item 1

A client was deported in his absence. In the late 1990’s or early 2000’s he had applied for permanent residence based on his professional employment. He waited and waited for an interview and finally despaired and returned to his country. A few years later he had an interview. He was long gone from the United States by this time and had established himself as a professional in his homeland. As a result he did not get notice of the interview. USCIS (or its predecessor, INS) denied his application because he did not show up. USCIS then forwarded his case to immigration court to deport him. He did not get notice of this either. He was deported in his absence, “in absentia.”

A few years later, knowing none of this, he came back to the United States as a visitor. He comes from a country where no visa is necessary to visit the United States. At the border he was denied admission because he had been deported. He explained his situation to the officers at the border. They said they were sympathetic but also powerless to admit him. He went to the U.S. Consulate in his homeland and the consular officers explained that he could get a visa, but he needed to get a nonimmigrant visa waiver of inadmissibility because he had a prior deportation. The consular officers were sympathetic, but their hands were tied and insisted that he get a waiver. Waivers were granted, but because he was a deportee, restrictions were placed on the visa – short lengths of time and restrictions on where he could enter and depart the United States.

We conferred by phone and email. We decided that rather than try to undo the removal order, we would seek a more comprehensive waiver called an “Application for Permission to Reapply for Admission into the United States After Deportation or Removal.” The rules at the time dictated that it be filed in the place he was ordered deported, which was Detroit, Michigan. We filed it in August 2006. Soon after, I received a receipt that the application was accepted. Then, a few months later I received a notice that the application was forwarded to the Nebraska Service Center. Exactly who adjudicated the application was immaterial to me so I thought nothing of the transfer and was heartened that the case was at least being handled. Handled = Progress, right?

Then, the application was returned to the client abroard. A note said it needed to be filed at the Consulate where an alien is applying for a visa. At the time we filed, the client was not applying for the visa and the rules did not call for this procedure in any case. However, the client was going to seek a visitors visa again (remember, his visas were issued for short periods because he was a deportee). I re-prepared the application and he filed it at his Consulate in March 2007. Then we waited.

I contacted the Consulate after a few months to check on the progress of the application and received an email explaining that the Consulate forwarded the case to USCIS and I should contact them. I asked the Consulate where it was filed and whom I should ask about it and was ignored. It was not hard to find out where the regional center of USCIS was that decided these cases abroad. I contacted that USCIS office. I got a curt reply that I need to contact the Consulate for information. I forwarded the email that showed that the Consulate had told me to contact them. Their reply was neither polite nor helpful.

As luck would have it I talked at a conference in San Francisco in November 2008 and on my panel was the USCIS chief for overseas adjudications – the man in charge of the system that was supposed to decide the application/waiver. He asked me to email him with the details. I did. He then put me in touch with the chief of the office that decides the waivers for this region of the world and that chief assigned the case to a deputy. She informed me in the first half of 2009 that her office did not have the file and that the Consulate’s explanation of how it forwarded the application to USCIS did not make sense. She said she would look into it more deeply with the Consulate. Over the summer the deputy informed me that she located the file and forwarded it to Detroit for adjudication. Detroit – where I had filed it in the first place three years earlier!

And this is where the story should end. One would expect that the Detroit USCIS would review the submission, conclude that the client was improperly deported, be a little embarrassed about sending the case away three years ago, and grant the waiver. Well, after three years where the application toured the world and ended up where it started, USCIS in Detroit denied the waiver this month because the deportation was improper in the first place. The decision stated that because the immigration judge should not have deported the fellow, no waiver is necessary. It did not dawn on Detroit USCIS that we all know the order is improper but it is still an order until the waiver is granted or the immigration judge rescinds it. The client continues to face consequences of his deportation. He can be turned away at the border, cannot enter without a visa despite being a citizen of a country where no visa is needed, and requires waivers to get visas and the visas have onerous restrictions on them . The waiver was supposed to cure this and should have been granted precisely because the deportation order was faulty. Instead it was denied.

Three years of fighting and coaxing and watching the papers tour the world and that is the brainless result.


Immigration Detention – Four Cases to Consider

Sunday, September 6th, 2009

I have been writing a whole lot about detention lately. Today I would like to discuss recent developments in four detention cases. I had bond hearings in two bond cases last week. It took about two weeks for each client to get a bond hearing because in San Diego only one judge per day conducts bond hearings and only in the morning. No bond hearings are held on Fridays or weekends (immigration is a strictly Monday – Friday affair, with most offices closed Fridays, though immigration courts are open Friday) and bond hearing must be set up 48 hours in advance. Thus, the earliest a person can get a bond hearing if he or she calls the court on a Wednesday (all calls before 10 a.m., please) is the next Monday. Usually, the earliest dates are booked. Then, the bond hearings start at 8 or 8:30 a.m. I would venture to say that most attorneys have some appointment or court date or interview already scheduled for some mornings in any upcoming two weeks, so there is also these conflicts to tend to.

Both hearings were short affairs – five minutes or so each. Both clients got bonds. The criteria is whether a person is a flight risk and/or a danger to the community. One client was detained based on a 1986 arrest. The judge determined that 23 crime-free years made him not a danger to the community. About two years ago he tried to surrender himself to Immigration and Customs Enforcement so he could get forgiveness that only an immigration judge could dispense, but ICE refused to take him into custody. He then tried through USCIS. They refused too. This convinced the judge he was not a danger to the community.

The other client was detained for a crime that one can be convicted of through negligence. Yes, Virginia, you can be deported for a negligent criminal act. The negligent act occurred four years ago. Again the judge determined the alien was neither a flight risk or a danger to the community.

It used to be that the Immigration and Customs Enforcement officers would set bonds for release wwhen an alien came into their custody. The regulations call for this. In fact, bond hearings are called “re-determination hearings” because the initial determination was made by ICE and gong to the judge was a way to lower an excessive bond or get a bond when ICE initially denied one. This practice saved the government losts of money – it costs the government more than $100 a day to detain someone. This is not an average cost (versus a much lower marginal cost), but an actual cost because aliens are incarcerated at a private jail in San Diego which bills the government per alien her day. For some reason, ICE will not set initial bonds anymore. In the two cases last week, each client was detained for two weeks and promptly released the day of their bond hearing. Had ICE set bonds (or released both aliens aftter serving them court documents – they really did not need bonds at all – they are not dangers or flight risks), the government could have saved nearly $3000. In addition, imagine the needless havoc to the clients – taken away from their family and jobs for two weeks. Some employers are not that sanguine about a client missing work for two weeks without warning because of an arrest by immigration officers.

A third case involves a man who has lived as a permanent resident for 50 years. He has no ties at all to his home country. He is subject to mandatory detention for a crime he committed in 2003 – more a ministerial failure (failing to file necessary papers) than a crime with any evil intent. For the same reason he is subject to mandatory detention, the nature of his crime by definition makes him ineligible for the normal forgiveness an alien can receive in court. However, there is relief available through other means. Unfortunately, it is time consuming to obtain this type of relief – it can take up to a year for all the hoops to be jumped through. Thus the poor man must spend a year in detention. He is obviously not a danger to the community because of the absence of real dangerousness or evil in his past criminal conduct. He is not much of a flight risk because of his long period of residence, his family ties, and his responsibilities in caring for a 10 year old daughter. Another reason he is not much of a flight risk is that he is disabled. He couldn’t run if he wanted to. The man will be granted relief from an immigration judge. Unfortunately it will take a year. It will cost the government $365,000 to detain him. He will lose his job and his home. His daughter will be subjected to God knows what. If a judge could set a bond, he would have.

And finally, a woman got released last week. She was subject to mandatory detention for a 2003 crime, as well. 2003 must have been a big year for crime, or maybe ICE is catching up with old criminals who pose a dire threat to our country year by year and is now up to 2003. She was taken into ICE custody in April. She is eligible for the standard forgiveness from the immigration court. She filed the relief papers at her very first court date – at the end of April. The earliest court date available is at the end of November. She will have to spend seven months in detention through no delays of her own for minor, victimless crimes all older than six years.

Despairing, despite being subject to mandatory detention, she went to court to seek release on bond. A judge reviewed the current state of the law. The Ninth Circuit Court of Appeals has been very critical of these prolonged detentions. So have many district courts around the country where habeas corpus actions have been taken. The Supreme Court has held that detention without some kind of hearing is permissible only if the upper limit of the length of detention is six months. You may recall from earlier postings that the Supreme Court decided in Demore v. Kim that mandatory detention of permanent residents was permissible because detention never lasts more than six months. The court found that detention should last in the majority of cases, for less than the 90 days, in 85 percent of the cases in which aliens are detained an average of 47 days and a median of 30 days. In the remaining 15 percent of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter. The court concluded “In sum, the detention at stake [under mandatory detention] lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” I wrote that this was all smoke and mirror statistics. I believe whoever in the Justice Department concocted those figures should be investigated for deceiving the Supreme Court.

After analyzing the delay in this lady’s case and the obvious crossing of the upper limit of six months through no fault of her own (the government argues that if an alien appeals what he or she believes is an erroneous decision, then his prolonged detention while on appeal is his or her own fault), the immigration judge, in a heroic move, set a bond. Weighing the strong equities in her case – she became a permanent resident here more than 30 years ago as a child, for one – he set a minimum bond. No one who has ever reviewed this case has concluded anything but that forgiveness is a foregone conclusion for this woman. She paid the bond and got out of detention this week after five months. The next morning, I got a fax from ICE. Their attorneys must have burned the midnight oil preparing stay motions to file with the Board of Immigration Appeals to order her back into custody. That compelled me to clear my calendar on Thursday to reply to the stay motion. With all the serious safety and security issues facing this country, one could imagine resources being devoted to something more significant that bringing a lady in her mid-thirties back into custody so she can languish for three more months before a judge talks to her for an hour and then forgives her and releases her. Fortunately, the BIA did not rule on the motion or reply before the Labor Day weekend. At least she can enjoy the holiday before the Inspector Javerts of the world pursue their justice.

If only Attorney General Eric Holder knew what is going on. If only President Obama knew what is going on. Rational people with an ounce of compassion would not abide by the inhumanity of the current custody laws and policies if they knew what was going on. People concerned about waste of tax money would not abide it either. People have got to find out what is going on.