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Immigration Appeals
Analysis And Reflections On Important Immigration Appeals Decisions. http://www.bataraimmigrationlaw.com/immigration-appeals.html
Curated by Carlos Batara
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Ninth Circuit Clarifies Safe Relocation In Convention Against Torture Claims

Ninth Circuit Clarifies Safe Relocation In Convention Against Torture Claims | Immigration Appeals | Scoop.it
Regarding the plight of foreigners claiming torture in their home countries, the 9th U.S. Circuit Court of Appeals has stated that it is neither the responsibility of the petitioner nor of the government to determine if it is indeed safe for them to return to another part of the country rather than where their torture occurred
Carlos Batara's insight:


For many years, the issue of relocation has caused headaches for deportation defense lawyers in asylum and Convention Against Torture (CAT) cases.


Immigration judges have often denied such claims because the immigrant fighting return to his or her country due to fears of persecution or torture could not prove they would be unsafe in all parts of their nation.


That's an absurd burden to place on asylees and refugees, many of whom lack a high level of education and sophistication.  I applaud the Ninth Circuit decision. 

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Fixing Immigration Appeals: Does Anyone Care?

Fixing Immigration Appeals: Does Anyone Care? | Immigration Appeals | Scoop.it
Escondido Immigration Lawyer Discusses Need To Fix Immigration Appellate System And Promote Fairness For Immigrants In Removal Cases.
Carlos Batara's insight:


Immigration appeals are often the last line of defense for immigrants facing permanent separation from their families.


With so much on the line, one might think the immigration appellate would be carefully designed to ensure efficiency and due process.


Think again.


If the immigration court system is the neglected step-child of  immigration reform, the immigration appellate system is the abandoned step-grandchild.


The most significant aspects needing modification have been known for some time.

  

For mixed families, consisting of immigrants and U.S. citizens, with deep community roots, fixing these problem areas is as urgent today as it was 5 - 10 years ago.


Nay.


The changes are more urgent today.



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Lost In A Legal Wilderness: U.S. Citizens Who Cannot Prove Citizenship

Lost In A Legal Wilderness: U.S. Citizens Who Cannot Prove Citizenship | Immigration Appeals | Scoop.it
Court: Applicants wrongly denied US citizenship
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Carlos Batara's curator insight, October 18, 2013 12:53 AM


An American citizen being deported four times because of a law that doesn’t exist sounds like the plot of a Hollywood movie.


Sadly, this is a true story.


As NPR reported, in Applicants Wrongly Denied U.S. Citizenship, for more than two decades, Sigifredo Saldana Iracheta kept telling immigration officials he was a U.S. citizen, born to an American father and a Mexican mother in a city just south of the Texas border. 


Meanwhile, his wife and three children remained in South Texas, hoping of the day his ordeal could end.


His claims were rejected. 


Not once, not twice, not three times.


Four times.


That beats a former client of mine, who, after failing twice to win his  citizenship status, lost his confidence and applied for permanent residence - before he finally proved citizenship on his third try.


Adding insult to injury, Saldana's citizenship claims were rejected on the basis of a Mexican law provision which did not exist.


At a hearing before the 5th U.S. Circuit Court of Appeals, the government lawyer explained the mistake on a “typo.”


In response, Judge Jennifer Walker Elrod scolded the government attorney, “you all have been citing this over and over again to people for years now, and you can't even look it up in Mexican law."


The judge was correct but may not have gone far enough.


Did Saldana ever have an attorney represent him in the earlier cases?


And what about the judges in those earlier cases?


Was anyone awake besides Saldana?


Perhaps worse, it is not know how many immigrants, like Saldana, have been deported under the same flawed interpretation of a non-existent law.



Sam Burich's curator insight, April 17, 2014 3:07 AM

This article shows fault in the United State's citizenship policy's.

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Real Deportation Defense Requires A Heavy Supply Of Compassion

Real Deportation Defense Requires A Heavy Supply Of Compassion | Immigration Appeals | Scoop.it

This blog post discusses why compassion is an essential weapon in the arsenal of deporation defense and immigration appeals lawyers.

Carlos Batara's insight:

After my mother passed away, I wanted to walk away from the practice of law.  I lacked the motivation necessary to oppose the government’s cruel approach to deportation law. 


When opposing counsel did not fulfill a promise he made to allow me time to grieve my loss and overcome my mental anguish, I was forced to realize that compassion is just another word in the view of those who enforce our immigration laws.


My client was fortunate.  My mother had taught me that if there’s a will, there’s a way. 


Unfortunately, I’ve seen too many lawyers who defend immigrants shy away from the bigger fights at immigration court. 


In my view, “come hell or high water, those who practice immigration law cannot afford to run at the first sign of overwhelming odds. If their actions are grounded in compassion, there is no automatic retreat button.”


After all, isn’t defense of those less fortunate than one’s self based on a quest not only for justice and fairness, but also compassion and love? 

 

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Second Circuit Tolls Immigration Appeals For 90 Days To Speed Up Deferred Action Decisions

Second Circuit Tolls Immigration Appeals For 90 Days To Speed Up Deferred Action Decisions | Immigration Appeals | Scoop.it
On last Tuesday, in a move that was widely acclaimed by immigration attorneys for properly addressing inefficiencies, the 2nd U.S. Circuit Court of Appeals has
Carlos Batara's insight:

On Tuesday, the Second Circuit Court of Appeals ordered that all pending immigration cases be tolled for 90 days to allow the government and the appellants to decide whether the case is worthy of pursuing.

 

The court noted that there exists “more than a thousand cases in our court” where the government has not yet decided “whether it will or can remove petitioners” given the new government stance on deferred deportation.

 

This is a good decision for immigrants.

 

Although it does not ensure victory, it emphasizes that given the administration’s focus on using its scarce resources on high-level deportation cases, the federal courts should not be burdened by law enforcement agencies reluctant to follow the shift in immigration policy.

 

In other words, government attorneys just got spanked.

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Old News, Outdated Thinking Reposted On Twitter. Is This The Launch Of A New Attack On Immigration Reform?

Welcome to the deportation abyss (@joseiswriting The Board of Immigration Appeals/ immigration litigation lottery is being abused by criminal aliens - http://t.co/tNiSR0v9Yl)...
Carlos Batara's insight:

This is an old article.  But given Congress’ reluctance to avoid the source of the heated debate leading to this piece, it seems the effect of such misguided beliefs remain at the forefront of many policy-makers’ minds even now.

 

I saw it posted on Twitter today.  One can only imagine why.  . 

 

As you read the article, ask yourself, “Where’s the honesty?”

 

Allow me to explain.

 

Anyone who thinks our immigration court system is guided by the proposition that “It ain’t over until the alien wins” have missed reading the score card.  Immigrants lose appeals far, far, far, far, far, far, far, far, far, far more often than they win them.

 

I’m no pie-in-the-sky blogger.  I live in the trenches, day in and day out.

 

I do not run a massive, lucrative business.  Most deportation defense lawyers are in the same situation.  Over half of immigrants facing appeals do not, in fact, appeal their case. 

 

And in most cases, many of us help our clients at reduced rates.  Why? 

 

They cannot afford the full value of our expertise, training, time, and experience.

 

It’s really easy to grab a few sensational cases and make an emotional argument to an unsophisticated public that criminals are being released from custody.  But when one is not the attorney on the case, he or she should know better than to arbitrarily judge a matter.  Weren’t we trained in law school to pay close attention to facts, all the facts, of a case?  Not merely a few selective facts.

 

Of course, truth is the goal here.  After all, the use of terminology like “the open borders lobby,” “shamnesty,” and “silent amnesty” in the context of immigration appeals and immigration court outcomes is not geared to rational discourse on such matters.     

 

What I fear here is that the spreading of old news, written to create an anti-immigrant sentiment, is part of a political plan to undermine immigration reform in 2013.

 

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The BIA And Federal Courts: Still In Search Of Lozada's Proper Path For Appellate Review

The BIA And Federal Courts: Still In Search Of Lozada's Proper Path For Appellate Review | Immigration Appeals | Scoop.it
Appeal and access to the federal courts is an essential underpinning of agency accountability, insuring that fairness is observed and justice is served in the implementation of United States immigration laws.
Carlos Batara's insight:

As usual, Ms. Rosenberg's insights transcend the normal analysis of complex immigration matters.

 

In addition to her concerns, one aspect of Lozada cases which should be included in the federal appellate review is the participation of the original attorney, who is the subject of the Lozada claim.  

 

At the BIA level, notifying the immigrant's former attorney is one of the three Lozada requirements.  However, at the federal level, the attorney is not notified, even though a formal Bar complaint against the lawyer has been filed and an investigation may already be underway.

 

By inviting previous counsel, federal courts could get a clearer picture on whether the BIA's adherence to strict formalities should give way to substantive justice in whether to grant or deny a Lozada motion.

 

Of course, such a modification could cut both ways.  I'm not sure my attorney colleagues would support such a change.

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Immigration Appeals Victory for “Aged Out” Sons & Daughters: De Osorio v. Mayorkas (9th Cir. 2012) Interprets the Child Status Protection Act

Immigration Appeals Victory for “Aged Out” Sons & Daughters: De Osorio v. Mayorkas (9th Cir. 2012) Interprets the Child Status Protection Act | Immigration Appeals | Scoop.it
The U.S. Court of Appeals for the Ninth Circuit has held that a son or daughter who was the derivative beneficiary of a family-sponsored immigrant petition but “aged out” (didn’t qualify because he...
Carlos Batara's insight:

De Osorio v. Mayorkas is a great victory for immigrants.  In practical terms, the Ninth Circuit ruled that immigrant children should not be punished because of the government's delay in processing their applications. 

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Why The Board Of Immigration Appeals Is Wrong About Hardship

Why The Board Of Immigration Appeals Is Wrong About Hardship | Immigration Appeals | Scoop.it
San Diego Immigration Attorney Discusses Three Reasons Why The BIA Hardship Standard In Deportation Defense Cases Is Wrong.
Carlos Batara's insight:

Only three published decisions on the relevant immigration hardship standard in nearly 16 years.  Someone has to call the Board of Immigration Appeals on the carpet. 

 

Especially when their legal analysis is suspect.

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Revisiting The Board of Immigration Appeals’ Sleeping Justice In Deportation Cases

Revisiting The Board of Immigration Appeals’ Sleeping Justice In Deportation Cases | Immigration Appeals | Scoop.it
For immigrants facing removal from the United States, clear court rules and regulations should be mandatory. In the absence of judicial clarity, immigrants’ fortunes are akin to flipping a co... (A New Year's wish.
Carlos Batara's insight:

A few years have passed since I wrote this post.  During that time, the Board of Immigration Appeals has not seen fit to publish any new opinions on the hardship standard in cancellation of removal cases.

 

So, for the records, they've issued three opinions since April 1, 1997.  Why so few?  One can only speculate, and most guesses are not flattering. 

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Landmark Asylum Ruling Misses Mark For Immigrant Women

Landmark Asylum Ruling Misses Mark For Immigrant Women | Immigration Appeals | Scoop.it
Riverside Immigration Lawyer Explains How The Board Of Immigration Appeals A-R-C-G Asylum Decision Does Not Adequately Protect Abused Immigrant Women.
Carlos Batara's insight:


Recently, the Board of Immigration Appeals issued a decision allowing Guatemalan immigrant women who have been victims of domestic violence in their homeland the right to seek asylum protection.


Both immigrant rights activists and opponents claimed the case was a landmark opinion. 


They were right and they were wrong.


On the one hand, the Board's decision pioneered a new path for asylum law.


On the other, the BIA narrow its ruling to avoid opening asylum floodgates.  In the process, several important issues were not addressed, including:


  • The decision was limited to married women in Guatemala, excluding non-married women in similar circumstances
  • The decision was limited to women from Guatemala, excluding women from all other countries facing like ordeals
  • The decision only covered women unable to leave a relationship, even though women often leave a relationship but still cannot escape domestic abuse


Why couldn't the Board simply declare a gender-based approach to asylum protection regardless of marriage status, country of origin, or whether they were or were not in a relationship? 


In other words, the landmark decision fell short of its mark.



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Ninth Circuit’s 212(h) Decision Provides Ray Of Hope For Immigrants

Ninth Circuit’s 212(h) Decision Provides Ray Of Hope For Immigrants | Immigration Appeals | Scoop.it
San Diego Immigration Attorney Shares Why Ninth Circuit INA 212(h) Decision Widens Deportation Defense Opportunities For Lawful Permanent Residents.
Carlos Batara's insight:


Is there a difference, legally speaking, between immigrants who are already lawful permanent residents (LPRs) at the time of their entry into the United States and immigrants who become LPRs after they enter the country?


And if so, why does it matter?


The Ninth Circuit Court of Appeals, joining a growing chorus of federal courts, recently said there is a legal difference, a huge legal difference, when it comes to seeking relief from deportation under the Immigration and Nationality Act, Section 212(h).


In terms of deportation defense, the court’s ruling allows immigrants a chance to be forgiven for past criminal offense – in matters where immigrants were previously not given such an opportunity. 


Although the batter is not over, the Ninth Circuit decision gives a ray of hope for many immigrant families facing permanent separation for actions which may have taken place 2-3 decades ago.


The Ninth Circuit decision can be found here: Negrete-Ramirez v Holder.


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Green Cards For Same Sex Couples Given Green Light By Supreme Court

Green Cards For Same Sex Couples Given Green Light By Supreme Court | Immigration Appeals | Scoop.it
We're getting key decisions from the Supreme Court on same-sex marriage  Rulings on the Defense of Marriage Act (DOMA) and California's Proposition 8 could affect how states and the federal government handle marriage equality Part of DOMA...

Via Arabella Santiago
Carlos Batara's insight:

Whereas I share the enthusiasm of the LGBT community regarding the Supreme Court's recent DOMA decision, I do not classify it as reaching the final frontier for civil rights. 

 

It seems Jim Crow is back and well in the South.  In addition, Jim's cousin, Jaime Crow is attacking Latino and Hispanics across the nation from West Coast to East Coast.  Women's rights are under siege. 

 

In its recent DOMA decision, the Supreme Court pushed outwards in expanding the classes of individuals protected from discrimination, but until racism, xenophobia, sexism, and other issues are eliminated hook line, and sinker, we must remain fully vigilant in the battle for universal civil rights.  

 

In short, there is little time to rest for celebration.  There are too many social fires to battle. 

 

Several years ago, I wrote about the challenges faced by those who challenged DOMA.  Livng on the cutting edge of constitutional law is not an easy existence.  See:  

http://www.bataraimmigrationlaw.com/same-sex-marriages-green-card-rights.html

 

As I noted back then, "When I was a student in law school, I was warned the law was a seamless web.  I thought my professor was exagerrating.  I no longer have such doubts."

 

The DOMA cases brought back this teaching full force.  As an immigration lawyer, the issues at stake included consitutional law, civil rights, family law, and, of course, immigration law, to name a few.

 

 

And because many issues were at stake, society has taken a giant leap forward.

 

It's just not the final frontier.

 

 

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Arabella Santiago's curator insight, June 26, 2013 11:11 AM

Same-sex marriage: The final frontier for civil rights, and today is a big step for #LGBT's and a giant leap for all Americans. With the defeat of DOMA today (Defense of Marriage Act), petitioning for a green card by married same-sex couples is now possible.

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An Oldie But Goodie: 10 Things You Should Know About Immigrants

An Oldie But Goodie: 10 Things You Should Know About Immigrants | Immigration Appeals | Scoop.it

American Apparel's Awesome Immigration Reform PDF


Via Nicole Yeary
Carlos Batara's insight:

This might be a 2003 article, but so much still holds true. In shorrt, a real guide for immigration refom discussions.

 

Immigrants pay taxes

 

Immigrants come to work and reunite with family members

 

Immigrants and their businesses contribute $162 billion in tax revenue

 

Immigrant entrepreneurs create jobs for U.S. and foreign workers

 

Immigrants fill jobs in key sectors, start their own businesses, and contribute to the economy

 

Within ten years of arrival, more than 75% of immigrants speak English

 

Today's immigrants are not that different than those of 100 years ago

 

Most immigrants come to the US legally

 

Despite more strongly enforced US border security, the number of undocumented immigrants has not decreased

 

The war on terrorism cannot be won through immigration restriction

 

To read for yourself, see:  http://www.americanapparel.net/presscenter/articles/20030601immigration.html

 

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How Immigration Reform Often Leads To Immigration Appeals

How Immigration Reform Often Leads To Immigration Appeals | Immigration Appeals | Scoop.it

In this post, San Diego Immigration Lawyer Carlos Batara shares why, when the smoke clears from the current round of immigration reform debates, the focus for immigrants must turn quickly to the implementation of the new rules by government agencies.

Carlos Batara's insight:

April Fools' Day has a special day for me.  It has an immigration meaning.  It makes me think about 1997, the day when one of the worst immigration legislative packages ever went into effect.

 

This post discusses how one particular change, the switch from Suspension of Deportation to Cancellation of Removal, placed many immigrants at risk of deportation.  But it was not just the increased standards which would ultimately affect immigrants.

 

In San Diego, a deliberate agency policy, to delay the processing of applications by immigrants to move forward under the old law, before it expired, was held hostage.  This led to several immigration appeals. 

 

Even today, clients walk into my office with documents showing they were part of the class of 1997 immigrants not provided with due proces.

 

It's this type of behavior by immigration agencies which causes me to cringe when I think about the new round of immigration changes soon to become law.

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Obiri Mokini's curator insight, April 18, 2013 8:21 AM

Time to remove all borders of discrimination.

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A Setback For Deportation Defense: Supreme Court Limits Reach Of Padilla v. Kentucky

A Setback For Deportation Defense: Supreme Court Limits Reach Of Padilla v. Kentucky | Immigration Appeals | Scoop.it
The Supreme Court ruled that a federal judge in Illinois should not have set aside a conviction in that predated a 2010 decision.
Carlos Batara's insight:

This ruling hurts.  Since the passage of IIRAIRA, back in the mid-1990s, lawyers who defended immigrants facing deportation had their backs placed against the wall, and 1 1/2 hands tied behind their backs.

 

Padilla v. Kentucky offered a ray of hope.  Of course, its promise outshone its reality due to a range of systemic causes.  The bark of Padilla was far louder than its bite.  From relunctant state and federal judges to less than motivated criminal defense attorneys, from stiff legal fees and costs to philosophically opposed immigration judges, the battle to set aside old convictions has been an uphill battle, at best, as described in this article: http://www.bataraimmigrationlaw.com/the-false-promises-of-padilla-v-kentucky.html

 

Now, the Supreme Court, with Justice Kagan delivering the opinion, put more handcuffs on immigrants who were thrown under the bus by the IIRAIRA folks in Congress. 

 

There is some good news.  Hopefully, criminal defense lawyers now know they need to take better care of their immigrant clients, especially those who are lawful permanent residents - and not plead them out to the first deal proposed by prosecutors.  

 

It puts a deeper burden on immigration counsel.  We will need to stay on top of the actions of our criminal law brethren.  After all, without our input, how will they know what is and what is not a good plea bargain?

 

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Obama Continues Assault on Young Immigrants As DOJ Appeals Crucial Ninth Circuit Immigration Victory

Obama Continues Assault on Young Immigrants As DOJ Appeals Crucial Ninth Circuit Immigration Victory | Immigration Appeals | Scoop.it
Yesterday, the Justice Department placed the brakes on the dreams of thousands of intending young immigrants, including many DREAM Act eligible youth. It appealed the landmark Ninth Circuit Child Status Protection Act victory to the Supreme Court.
Carlos Batara's insight:

Once again, the administration is sending mixed messages.  On the one hand, the administration is asserting family unity is a priority for immigration reform.  Supposedly, these promises would affects thousands of young immigrants.

 

On the other, the adminstration is challenging a recent Ninth Circuit ruling on the Child Status Protection Act. The impact will affect far, far less than 10% of the total to be covered under immigration reform provisions.

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Immigration Appeals: 55 Minutes For Justice, Fairness, And Due Process

Immigration Appeals: 55 Minutes For Justice, Fairness, And Due Process | Immigration Appeals | Scoop.it
In 2010, the Board of Immigration Appeals (BIA), our nation’s highest administrative body for interpreting and applying immigration law, issued 33,000 decisions. There are 15 Board members. On the ...
Carlos Batara's insight:

While we're on the topic of immigration reform, it's important to draw some attention to our woeful, if not broken, immigration court system. 

 

The Board of Immigration Appeals is a critical part of our immigration court system.  How can justice, fairness, and due process be served if the appeals of immigrants are limited to a 55 minute review on the average?

 

That average, by the way, assumes an efficient system.  

 

However, there's not talk about immigration reforms trickling down to and including the immigration court system.

 

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Supreme Court Chief Justice John Roberts Blasts Congressional ...

Supreme Court Chief Justice John Roberts Blasts Congressional ... | Immigration Appeals | Scoop.it
Original proceedings and bankruptcy appeals also rose, and appeals of administrative agency decisions grew in response to higher filings related to rulings by the Board of Immigration Appeals. The Federal District Courts ...
Carlos Batara's insight:

In his 2012 Year-End Report on the Federal Judiciary, Supreme Court Justice John Roberts noted filings in the courts of appeals rose four percent.  Although he did not specify numbers, he also pointed out appeals of administrative agency decisions grew in response to higher filings related to rulings by the Board of Immigration Appeals.

 

I doubt any immigration court observers are surprised.

 

With truncated grounds to challenge decisions made by the lower immigration courts, coupled with the BIA’s tendency towards limited review, the burden of achieving justice and fairness for immigrant clients often falls on the federal circuit courts.  

 

Each step up the ladder creates addition costs for immigrants, many of whom are low wage earners.  If the truth be told, the process was not created and implemented as an inadvertent political policy. 

 

In fact, I feel this sad outcome may have been part of the “self deportation” mentality   before the scheme went public during the recent presidential elections.   

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