The August 1, 2011, New Yorker published a story, “Annals of Immigration; The Asylum Seeker,” by Suketu Mehta  that encapsulated everything about immigration law that is both dispiriting and outrageous. It is a clarion to new lawyers to keep away from the profession and a motivator to honest lawyers in the field to want to take a long shower after any day associating with his or her peers or “the system.” It may be the saddest thing I ever read that did not deal with death or dying. The article at a technical level was lacking. It was an article about the law, but did not discuss the law. As any person who had attended even a week of law school will tell you, the law is about elements that must be proved. In criminal law, a crime has elements. If you satisfy the elements, you are guilty. For example, in common law burglary there are four elements. A person must (1) break and (2) enter (3) a dwelling (4) at night with the (5) intention to commit a felony. The complexity of the law is to then define the elements – what is breaking, what is entering, what is a dwelling, when is it night, what is an intention and how do you prove it, and what is a felony. Then, the facts must be applied to law. Then there is the process involved in proving it (the trial including who decides, what is fair, who proves what, the admissibility of the evidence…) and then appealing the decision. It can be dry stuff – probably why the article skipped it. (more…)

The courts of appeal perennially must deal with the issue of ineffective assistance of counsel. The issue is whether a case should be reopened if an attorney made a mistake in the case. The issue highlights a conflict between two conflicts in law in general – an interest in finality versus an interest in fairness. The interest in finality is that a case must end at some point. An alien has his day in court and he has his appeals. When his appeal is resolved, a multi-year process, there is a resolution, win or lose. After several years of litigation, the case must end. The other interest is fairness. If an alien who is living in the United States and has established close ties to this country, be them familial, professional, or something else, and if an alien faces removal and the rupturing of these ties, or if removal means the potential for extreme hardship or even death, the process that led to his deportation should be fair. If he process was marked by prejudicial errors by a former attorney or by the courts, such that without these errors the foreigner may have won his case, it is simply not fair to deport the alien. (more…)

I was recently hired to represent someone who is in the middle of the process of applying for a permanent resident visa abroad – a process that is handled by the Department of State. I needed information about the case which is currently being handled by the State Department’s National Visa Center. I sent them my question along with the State Department’s form DS-3032, which is entitled, “Choice of Address and Agent for Immigrant Visa Applicants,” which a visa applicant uses to designate whom he or she would like to represent him. I got the following email from the State Department today: (more…)

If I knew how to put a black box around a posting to signify a sad, dark day for non-citizens, I would do it for this posting as I write about a new decision, Nunez Reyes v. Holder, which overrules Lujan-Armendariz v. INS,  a decision that recognized state expungements of simple possession drug offenses so that the harsh immigration consequences of drug convictions would not apply to those with expungements.

First, what are the “harsh consequences” of simple possession offenses? According to INA § 212(a)(2)(A)(i)(II), any admission to or conviction for any drug offense renders an alien inadmissible. That means the person cannot enter the United States as a permanent resident or become a permanent resident after entering the United States. The one exception is if there was one conviction of possessing thirty grams or less of marijuana more than 15 years earlier or if a showing can be made of extreme hardship to a U.S. citizen or permanent resident spouse, parent, son, or daughter of the alien. (more…)