Prosecutorial Discretion Could Get You Out of Removal Proceedings

January 18th, 2012 Max Nuyen

If you’ve been following what is happening in the immigration law arena, you may have noticed a term that has been used a lot in the last six months: “prosecutorial discretion.”  The reason for its being in the news is because in the summer of 2011, ICE issued a series of memos regarding prosecutorial discretion.  I have not previously discussed this topic because even though the memos have existed for about six months, ICE has not put in place any formal program for implementing the policy goals of the memos.  That has changed, and many ICE field stations, through the Office of the Chief General Counsel, have begun accepting written requests for prosecutorial discretion. If you are in detention or removal proceedings, this may be an opportunity for you to end the proceedings against you so that you can resume your life.

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Crime of Violence Watch

November 23rd, 2011 Max Nuyen

Lopez-Cardona v. Holder (9th Cir. 11/18/2011)

The Ninth Circuit decided that residential burglary, specifically a violation of California Penal Code § 459, constitutes a crime of violence. Thus, a person convicted under this Penal Code section would become ineligible for relief under withholding of removal pursuant to 8 U.S.C. § 1231(b)(3). The court determined that residential burglary fits the definition of a crime of violence because it is a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The court noted that any time a burglar enters a dwelling with the intent to commit a crime there is a risk that in the course of committing the crime he will encounter one of its occupants, and use physical force against that occupant either to accomplish his crime or to escape apprehension. There’s not much more analysis than that. Bottom line is that a convicted burglar will not be eligible for many forms of immigration relief.

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Aggravated Felony Watch

October 13th, 2011 Max Nuyen

Rodriguez-Valencia v. Holder (BIA 7/21/2011)

In a published decision, the BIA held that conviction for unauthorized imitation of trademarks constitutes an “aggravated felony” as an offense relating to counterfeiting for purposes of removal pursuant to 8 U.S.C. Sec. 1101(a)(43)(R).  The petitioner was convicted of violating California Penal Code Sec. 350 for having willfully manufactured, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark.  The case doesn’t discuss exactly what articles were counterfeited.  Could be purses, CD’s, shoes, rims, or anything else.  Bottom line is that counterfeiters, if apprehended, could face serious jeopardy, as in getting deported.

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365-Day Sentence Considered One Year, Even if Served During Leap Year

October 7th, 2011 Max Nuyen

Habibi v. Holder (9th Cir. 9/14/2011)

I would put this case under the “nice try” category.  Immigration attorneys,  especially the ones who mainly deal with appellate issues, can be very creative.  Sometimes our creativity pays off.  Other times, it doesn’t.   The above case is an example of a cute idea that didn’t get too far.

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BIA Has Authority to Expand List of “Particular Serious Crimes” Which Would Limit Asylum Claims

August 29th, 2011 Max Nuyen

Delgado v. Holder (9th Cir. 8/19/2011)

Most folks with a passing understanding of immigration law know that certain crimes will lead to the denial of immigration benefits or removal.  For instance, you would be ineligible for asylum if you were convicted of an aggravated felony, regardless of how meritorious your claim of persecution may be.  Most crimes which would constitute an aggravated felony have been enumerated by the immigration statutes and regulations.  A lesser known provision of the same statutes provide that particularly serious crimes not enumerated can also serve as a bar to asylum benefits.  The meaning of “particularly serious crime” is not defined.  Instead, the statutes permit the U.S. Attorney General (really the BIA acting on behalf of the Attorney General), to designate by regulation offenses which would fall under the category of a “particularly serious crime.”  Such a crime must also constitute a danger to the community of the United States.

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Fraud by Immigration Consultant May Toll Deadline for Asylum Cases

August 18th, 2011 Max Nuyen

Viridiana v. Holder (7/20/2011)

One of the things to keep in mind about filing for asylum in the U.S. is the one year deadline. That is, an asylum application must be filed within one year of entering the country. Applications filed late, even if they are meritorious, will not be considered. One year may seem like a long time, but filing a well documented and researched application takes a lot of work. Also, many asylum applicants may not even be aware of the deadline until it is too late. It is very easy to let the deadline pass, as evidenced by the large number asylum cases which are appealed on account of the one year deadline issue.

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State Conviction for Drug Offense Can be Basis for Removal Even if Conviction Is Expunged

July 18th, 2011 Max Nuyen

Nunez-Reyes v. Holder (9th Cir. 7/14/2011)

If a non-citizen is convicted of simple possession of a controlled substance under federal law, he or she will get a second chance. This is due to the Federal First Offender Act (“FFOA”), which mandates that a federal conviction for simple drug possession that has been successfully expunged shall not be considered a “conviction” for immigration purposes. That means that a non-citizen convicted by the federal government of simple drug possession and who has had his or her conviction expunged would not be subject to being deported. Many states, such as California, have laws similar to the FFOA. That is, a conviction for simple drug possession may be expunged if the person completes a mandatory drug treatment program. For all intents and purposes, an expunged conviction never existed.

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Asylum Applicant Not Required to Corroborate Testimony that

July 1st, 2011 Max Nuyen

Singh v. Holder (9th Cir. 6/17/2011)-UPDATED

The Ninth Circuit court of Appeals, with all judges in the circuit taking part in the decision, voted to reverse itself regarding an earlier decision which I previously discuss here.  The issue in this case was whether an asylum applicant is required to provide additional evidence which corroborates his credible testimony that he filed his application within one year of arriving in the U.S.  To my dismay, a panel of three judges who originally heard the case ruled that the applicant must do so.  Now, the full court reconsidered the decision and overruled the panel.

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A Young Man’s Story About Being an Illegal Alien (With a Happy Ending)

June 24th, 2011 Max Nuyen

One of the things I like about being an immigration lawyer is that I get a chance to make a difference in other people’s lives.  It sounds corny, but there is great satisfaction in knowing that you helped another human being achieve their dreams. I am always happy to hear from old clients, if only just to touch bases to let me know how they are doing.  Most of them are doing better than what I hoped for.  Some of them, like Rob Rosas, are truly thriving. 

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Immigration Judge Finds ISAP is a Form of Custody

June 21st, 2011 Max Nuyen

 In the Matter of –(3/6/2009)

I discovered this case recently while researching some issues pertaining to ISAP.  It’s not available to the public because it has not been published.   The decision was written by an immigration judge in Florida, so it has no real precedential authority, but its legal discussion is valuable nonetheless because it offers a good strategy for dealing with ISAP and being forced to wear the hated GPS ankle device.

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    The analyses and opinions expressed herein are formed in a vacuum. That means, no facts were applied to them and they are academic in nature. They are not intended to be legal advice. You should consult an attorney for advice regarding your individual situation. I welcome your calls, letters and emails. However, contacting me, or submitting a question or comment to this website does not create an attorney-client relationship. Please do not submit any confidential information until such time as an attorney-client relationship has been established.

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