Immigration Judge Finds ISAP is a Form of Custody

 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.

Late TPS Registrant for Derivative Benefits Must Meet All Initial Requirements

Matter of Echeverria (B.I.A. 6/1/2011)

Temporary Protected Status (“TPS”) is a humanitarian program designed to permit aliens who are present in the U.S. to remain in the country even though they may not qualify for any type of immigration benefit or asylum. TPS does not confer immigration status, but does give the beneficiary an opportunity to live and work in the U.S. for defined time periods. It is available to citizens or nationals of a foreign country which has undergone some type of natural disaster, and therefore, cannot repatriate its citizens. The last TPS designated country was Haiti, which was nearly brought to complete collapse by the earthquake in 2010.
In order to apply for TPS benefits, a person must meet some strict requirements, one of which is that he or she must apply during the initial registration period, or any subsequent extension period thereafter. If one applies during an extension period rather than the initial registration period, this is considered late registration. This is permitted under certain circumstances. TPS contemplates derivative beneficiaries as well. A spouse or child of a TPS registrant may apply for TPS as a late registrant.


I get quite a few questions about the Intensive Supervision Appearance Program (“ISAP”), particularly when the person is requested to wear an ankle GPS device. Here are my observations so far:

  • If you want to have the ankle device removed, you must file a formal request with an immigration judge right away, as in TODAY. Normally, you have only seven days to make such a request, so don’t delay.
  • Don’t bother trying to ask the ISAP official for any type of relief. ISAP officials are generally private contractors who have no discretion whatsoever. They do not have the authority to change the terms of your custody. Once you have been referred to ISAP, they can only follow their protocol, and not much else. Only ICE can modify the terms of your release and custody, or an immigration judge (within a very short time period).
  • ICE will sometimes take you out of ISAP without your having to do anything, but there is no guarantee that this would happen. Also, there’s no predicting when or why they would make this decision, so you should not count on it happening.  You may have to wear the GPS ankle device for years before ICE decides you don’t need to wear one anymore.

If you are reading this, the bottom line is that you SHOULD NOT WAIT A MINUTE LONGER to take action if you want to effectively deal with the issue of having to wear and ankle device. I can’t emphasize this enough.

Click here for another article on ISAP.  Good luck.

Companies in Arizona May Have Business Licenses Revoked for Hiring Unauthorized Aliens

Chamber of Commerce of United States v. Whiting (SCOTUS 5/26/2011)

Since January 1, 2008, all employers in Arizona have been required to use the E-Verify system to check the employment eligibility of new employees. E-Verify is a federal electronic database program whereby an employer may check the immigration status of a job candidate electronically. The electronic database is maintained by federal agencies including the Department of Homeland Security and the Social Security Administration. If a job candidate does not “clear” the database, the employer is supposed to terminate the employee. Failing to terminate an employee who is not cleared by the E-Verify creates a presumption that the employer knowingly hired an unauthorized alien. Arizona requires that an employer who is found to have knowingly hired an unauthorized alien may have its business license revoked or suspended by an Arizona court.

Ninth Circuit Lays Out Procedure for Appeal of Denial of Bond Hearing

Leonardo v. Crawford (9th Cir. 5/13/2011)

In 2008, the Ninth Circuit decided Casas-Castrillon v. DHS, which held that aliens detained pending completion of their removal proceedings are entitled to a bond hearing before an immigration judge to determine whether their ongoing detention is justified.  While a very important case for those in detention, there were several areas which the ruling did not address.  For instance, what happens when a bond hearing is conducted but the immigration judge denies bond?  After all, Casas-Castrillon only holds that a detainee is entitled to a bond hearing.  It doesn’t hold that a request for bond must be granted.  The immigration judge still has the discretion to grant or deny bond, based on a showing by the government that the detainee is a flight risk or a danger to society.  The case discussed herein addresses the question of what is the proper procedure for appealing the decision of an immigration judge who denies bond.

Firm Resettlement a Bar to Asylum

Matter of A-G-G (B.I.A. 5/12/2011)

Although asylum is a powerful form of relief for those who qualify for it because it offers at path permanent resident status without the need for a sponsor, it is subject to certain limitations.  One such limitation, as discussed in this case, is the doctrine of “firm resettlement.” The immigration statutes and regulations provide that an alien is ineligible for asylum if a finding is made that the alien was firmly resettled in another country prior to arriving in the United States.  This is the case because asylum is only intended for those who have nowhere else to turn.  Political refugees who found safe haven in another country should not travel to the U.S. in order to apply for asylum here.  What it means to be firmly resettled has been a source of contention and debate in the immigration courts, the BIA, and the federal circuit appellate courts.  In this case, the BIA tackled the issue head on, and issued controlling guidelines as to how it should be determined that an asylum applicant is firmly resettled.

Parent of Formerly Abused Children Qualify for VAWA

Lopez-Birrueta v. Holder (9th Cir. 2/17/2011)

Congress enacted the Violence Against Women Act (“VAWA”) in 1994 as a means of allowing persons of foreign birth who have been in physically or mentally abusive relationships with U.S. citizens or permanent residents to self petition for permanent residence.  The reason why this became necessary is because often times, the abuser in the relationship will use the alien’s immigration status (or lack thereof) to threaten or intimidate the alien into submission.  It is common that the abuser would threaten the alien with being reported to ICE if the alien did not obey the abuser and put up with the abuse.  I have seen this scenario many times in my years of practice.  Although VAWA is directed at abuse suffered by foreign women, the statute itself is gender-neutral.  A man can easily apply for VAWA if he meets the criteria.  Another little known fact is that the parent of a child who has been abused by a U.S. citizen or permanent resident may also qualify for VAWA.

Alien in Prolonged Detention Entitled to Bond Hearing to Determine Appropriateness of Continued Detention

Diouf v. Napolitano (9th Cir. 3/7/2011)

The Ninth Circuit has previously ruled that a person who is in detention and has been ordered deported, but who has filed an appeal of the deportation order, is entitled to a bond hearing before an immigration judge to determine whether or not continued detention is appropriate because such person is dangerous or a flight risk.  The court has followed that decision in a case with different, but related circumstances.  The court ruled that a person in prolonged detention, who has a final deportation order against him, but who has filed a motion to reopen his case, is also entitled to a similar bond hearing.

BIA Has Jurisdiction to Hear Motions to Reopen For Petitioners Abroad

Pruidze v. Holder (6th Cir. 2/3/2011)

In a ruling that follows the reasoning of other appellate circuits which have heard the issue, the 6th Circuit Court of Appeals tossed out one of the BIA’s most longstanding rules of jurisdiction.  For at least 50 years, the BIA has had in place what is known as the “departure bar.”  This is a rule the BIA created which essentially cuts off its jurisdiction to hear and consider motions to reopen if the petitioner is outside the United States.  Meaning, if a petitioner has been removed, has departed voluntarily, or is otherwise no longer in the country, the BIA will not consider his motion to reopen.  The rule also deems a pending motion to reopen abandoned if the petitioner leaves the country for any reason.  The rule is an important one with significant consequence because often times, a petitioner may be able to obtain new evidence which may cause his case to been viewed more favorably only after he has been removed (an example would be an asylum applicant who is able to discover evidence of persecution, or who suffers additional persecution, once having been returned to his home country).  With the application of the “departure bar,” the case is practically dead if the petitioner is outside the U.S. because it would have been impossible for him to file a motion to reopen to have the additional evidence reconsidered.  The BIA would simply refuse to hear the motion.

BIA Modifies Meaning of “Date of Admission” for Removal Purposes

Matter of Alyazji (BIA 2/3/2011)

The BIA rarely reverses itself (but is reversed on many occasions by the circuit appellate courts), but it does happen from time to time.  In this case, the BIA conceded that an issue that it considered in an earlier case was decided wrong.  The issue is:  What is the meaning of the phrase “after the date of admission” with regard to § 237(a)(2)(A)(i) of the INA?  This section of the INA authorizes the removal of any alien who “is convicted of a crime involving moral turpitude committed five years…after the date of admission,” provided the crime is punishable by a sentence of imprisonment of one year or longer.  Congress designed this section to deal with recent immigrants who are admitted to the U.S. and then soon after commit serious crimes.  The section makes it easier to have such persons removed from the country.

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