Friday, April 29, 2005

Res judicata might apply in removal proceedings

The Second Circuit in August 2004 outlined, but did not decide, the issue of whether res judicata (claim preclusion) applied against the government. The government issued a Notice to Appear and only included some, but not all, of the possible charges it could bring. Ultimately, it temporarily obtained a deportation order but because the criminal conviction that formed the basis of the order was vacated, the deportation order was lifted and essentially the immigrant prevailed in the deporation proceedings.

The Second Circuit noted that if the government issued a new Notice to Appear based on charges it could have included (but for whatever reason chose not to include) in the original Notice to Appear, the immigrant could argue that under res judicata, the government could not bring the new charges.

In a lengthy footnote of Johnson v. Ashcroft, No. 03-201 (2d Cir. Aug. 5, 2004), the judges explained that the issue is a complicated one and that res judicata does apply in some immigration proceedings. They explained that immigration proceedings are frequently treated as civil proceedings. Therefore, there is some weight for the argument that res judicata might extend to the deportation and removal context.

Ultimately, though, the judges did not say how they would rule on the question, because it was not critical to disposing of the appeal. The judges were essentially ordering the government to file a new Notice to Appear and the res judicata issue would not arise until after the immigrant objected to receiving the forthcoming new Notice to Appear.

A district court applied res judicata to prevent a second NTA that was based on convictions already known by ICE at the time it filed its first unsuccessful NTA. In Murray v. Ashcroft (D. Conn. June 9, 2004), the district court prevented ICE from bringing a second NTA based on two convictions it already sued upon (two marijuana convictions) and one conviction it knew about but did not sue upon the first time. The first NTA charged only that the immigrant was deportable due to aggravated felony convictions, a claim that the BIA rejected. The second NTA attempted to charge the immigrant with being deportable due to being convicted of drug-related crimes.

The district court in Murray cited a case regarding citizenship petitions, Medina v. INS, 993 F.2d 499, 503-04 (5th Cir. 1993). Note also the case of Ramon-Sepulvda v. INS, 824 F.2d 749 (9th Cir. 1987).

Tuesday, April 26, 2005

Kentucky parents forced to risk deportation when calling police

When parents of a 16-year old girl thought she was kidnapped, they had to worry about the risk they would be deported if they called the police for help. According to the Kentucky Courier-Journal, Tiburcio Quijano and his wife called the police, realizing it could lead to their deporation because they have been in the United States for four years without permission. The daughter called the FBI to report she willingly left Kentucky and was not kidnapped, a claim the police are apparently investigating.

Although an ICE agent visited the parents, they seemed to tell the parents they were interested in helping find their daughter, not in deporting the parents. An ICE spokesperson did not speak specifically about the case but said generally that if a family in that situation has no criminal record, it likely will not be targeted by immigration officials. But the spokesperson said he couldn't guarantee that.

There is little reason why ICE should deport someone for calling the police about an apparent crime and emergency. The result might be that immigrants will be afraid to report dangerous circumstances to the police, which will put all of us in greater danger.

4/26/05 addition: the police in Carlsbad, North Carolina understand the problem with calling immigration authorities. According to an article in the North Carolina Times:

"One would hope that various law enforcement agencies here would realize how counterproductive that (immigration enforcement) would be," said Attorney Claudia Smith of the California Rural Legal Assistance Agency in Oceanside. "People just don't come forward as either witnesses or victims." That is one of the reasons that Oceanside police don't get involved in immigration issues, said Capt. David Heering of the Oceanside Police Department. Heering said police don't want people to be afraid they might be deported when they need help, because officers want to arrest and prosecute criminals. Manpower also plays into local decisions, officers said. Carlsbad officers decide on a case-by-case basis whether to call the Border Patrol, and it depends on how serious the crime or the offender is, said Capt. Mike Shipley of the Carlsbad Police Department. "I'm not going to tie up an officer for three hours because a guy working in a field doesn't have (immigration) papers," Shipley said. Lt. David Mankin, spokesman for the Escondido Police Department, said Escondido police will notify the Border Patrol if a suspect has an immigration hold. If the suspect doesn't have such a hold, then they're processed like everyone else, he said. If suspects are deported, then they can't be prosecuted, Mankin pointed out.

Monday, April 25, 2005

Due Process violation for waiving defense after off-the-record discussion

The Ninth Circuit ruled in Cano-Merida v. INS, No. 01-71423 (9th Cir. Nov. 22, 2002) that an immigrant who appeared pro se (without an attorney) deserved a new deportation (removal) hearing because his Due Process rights under the U.S. Constitution were violated when the immigration judge went off the record to tell him that he believed the asylum application had no basis and quickly led the immigrant to withdraw his asylum claim.

The Ninth Circuit required proof of prejudice, that if the hearing had gone ahead, it would have made a difference in the result. The immigrant prevailed on that issue because the immigration judge made it impossible for him to submit the full evidence that would have shown that he would have won if the hearing had gone ahead.

So, ideally, do not give up your claims based on an immigration judge's comments off the record. But if you do give up some of your claims, there may be an argument that the immigration judge violated your Due Process rights.

The basic elements of due process are clear. The "Fifth Amendment entitles aliens to due process of law in deportation proceedings," Reno v. Flores, 507 U.S. 292, 306 (1993), but due process is "flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (“Precisely what minimum procedures are due under a statutory right depends on the circumstances of the particular situation.”). The due process afforded aliens stems from those statutory rights granted by Congress and the principle that “[m]inimum due process rights attach to statutory rights.” Marincas, 92 F.3d at 203; see also Meachum v. Fano, 427 U.S. 215, 226 (1976).

The "fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Sunday, April 24, 2005

212(c) Relief is Very complicated

The BIA's decision on April 6, 2005 in In re Blake, 23 I&N Dec. 722 (BIA 2005) indicates that the BIA's position is that 212(c) relief is only available to avoid deportation if there is a corresponding ground of inadmissibility. In theory, if the BIA takes a position, that is not the end of the matter -- the BIA's position can be challenged in the federal courts as unconstitutional (and challenges to other BIA positions have been successful in the past).

Section 212(c) relief began as a way for immigrants who were lawfully admitted as permanent residents to be admitted back into the U.S. if they could show, among other things, that they had been living for seven consecutive years as a green card holder before they left the U.S.

In 1976, the federal courts ruled that people facing deportation should also have a chance to seek section 212(c) relief, just like people who are trying to return to the U.S. The BIA and DHS have frequently argued that 212(c) relief is only available if the conviction the immigrant is trying to waive is also a ground of inadmissibility.

The BIA's position on what convictions also serve as a ground of inadmissibility upon initial glance seems to be as follows. Note, this is a very complicated area where lawyers who are given enough time can study nuances and other court rulings to anticipate additional arguments and theories. It is very complex and the BIA's comments should not be taken as the final word. In fact, the concurring opinion in Matter of Meza, 20 I&N Dec. 257, 260-61 (BIA 1991) suggests a different view:

Drug-related aggravated felony? Yes, there is a comparable ground so section 212(c) relief seems like a possibility. Matter of Meza, 20 I&N Dec. 257 (BIA 1991). Also, Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) .

Firearms violation? No. Matter of Esposito, 21 I&N Dec. 1 (BIA 1995); Matter of Montenegro, 20 I&N Dec. 603 (BIA 1992). Also, Cato v. INS, 84 F.3d 597, 600 (2d Cir. 1996).

Fraud and misuse of visas, permits or other entry documents? No. Matter of Jimenez, 21 I&N Dec. 567 (BIA 1996).

Murder, rape aggravated felonies? Perhaps no, as generally described in the Supplemental Information to the new regulations on 212(c) relief.

Crime of violence aggravated felonies? Perhaps no, as generally described in the Supplemental Information to the new regulations on 212(c) relief.

Sexual abuse of a minor? No. Matter of Blake, 23 I&N Dec. 722 (BIA 2005).

I need to check my notes, but I think under Drax v. Reno, 338 F.3d 98 (2d Cir. 2003), the crime of entering the U.S. without inspection would be ok for 212(c) relief.

If you have a particular problem, you should consult an immigration attorney because this area of the law is very complicated and requires researching many complicated court rulings. For example, this has dealt so far with only the requirement that there must be a corresponding ground of inadmissibility. I did not even touch on the length of time with permanent residence status needed, that the conviction had to take place before April 24, 1996 (or under different rules if after then but before April 1, 1997), or whether the conviction must have been reached through a plea agreement as opposed to a trial. The Third Circuit decision in Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) allowed an immigrant who went to trial before April 1997 to seek 212(c) relief when he rejected a plea agreement by relying on his expectation that he would be able to ask for 212(c) relief later. Potentially helpful cases in other circuits include Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) and Thaqi v. Jenifer, 377 F.3d 500 (6th Cir. 2004) (two crimes of moral turpitude, one by trial and one by plea).

Another useful case is Gonzales-Garcia v. Gonzales, No. 04-60385 (5th Cir. Nov. 15, 2005): the 212(c) requirement of continuous physical presence cannot be stopped under the stop-time rule by the mere commission of a crime of moral turpitude before 1997. It can stop with the issuance of an NTA, but not a mere criminal act pre-IIRIRA (pre-1997) that the person pled guilty to, because that would be improperly retroactive.

Saturday, April 23, 2005

Complaints filed in NY over limited help for non-English speaking hospital patients

On April 21, the New York Immigration Coalition and several other immigrant advocacy groups filed complaints with the New York State Attorney General because they were unable to make progress in trying tow ork collaboratively with hospital administrators to address the needs of patients with limited English speaking skills. One target for their frustration was the Greater New York Hospital Association (GNYHA).

According to the Latin American Integration Center, a small survey suggested that 28% of patients at St. Vincent's Staten Island Hospital did not receive service in a language they could understand. According to Make the Road by Walking, a small survey suggested that 85% of Spanish-speaking patients at Jamaica Hospital could not communicate with their doctor or staff.

According to a December 2004 report by PRLDEF, in April 2004, GNYHA was one of the only opponents to proposed legislation to reinforce existing law on hospitals providing interpreters to patients. GNYHA called for more funding and expressed concerned that expanded requirements would put too much of a burden on an already fragile health care system.

We could not find any recent postings on this topic on the GNYHA web site.

Thursday, April 21, 2005

Immigration Judge must state basis for conclusions

The summary, unpublished order by the Second Circuit in Shao Lan Zhang v. BIA, No. 04-0110 (2d Cir. April 19, 2005) granted a petition for review because the immigration judge did not offer any basis for its conclusions. The court reiterated that to deny an asylum claim, the judge must (a) identify the particular pieces of missing, relevant documentation, and (b) show that the documentation at issue was reasonably available to the petitioner." Jin Shui Qui v. Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003). The Second Circuit focused on the judge's statement that an asylum claim lacked supporting documentation without identifying what documents were missing. Also, the judge said he noticed contrary facts in background materials without identifying the background materials.

Wednesday, April 20, 2005

American citizens who are Muslims sue DHS for discrimination

According to an ACLU press release, the ACLU, NYCLU, and CAIR announced a lawsuit charging DHS with violating the Constitutional rights of American citizens who visited a religious conference in Toronto about Islamic issues. None were charged with any crime or illegal act, but all of the Muslims who allegedly were targeted for their religion were detained, frisked, photographed, and fingerprinted.

A copy of the Eastern District of New York lawsuit is available on the web. I am not planning to attend any Islamic conferences in the near future.

Monday, April 18, 2005

Great Spanish tutor

We know a great Spanish language tutor and teacher in Manhattan! Email us for details and our recommendation! She has experience teaching Spanish in a law school, too.

Thursday, April 14, 2005

Due process for immigrants

Immigrants have due process rights in immigration court. For example, the Third Circuit (which covers New Jersey) has ruled that immigrants have the right to each of the following at immigration hearings: (1) a factfinding based on a record produced before the decisionmaker, (2) the opportunity to make arguments on his behalf, and (3) an individualized determination of his interests. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001.)

Third Circuit says motion to reopen after 90 days can be equitably tolled

Have an in absentia deportation order because an attorney or notario defrauded you into thinking everything was taken care of? The government has frequently taken the position that unless you ask to reopen your deportation order within 180 days, you are out of luck.

Many immigration advocates argued that was an unfair rule. If your prior attorney or notario kept you in the dark (and you can prove it), there should be a way to reopen your deportation order even if over 180 days passed. After all, many devious people can keep others in the dark for over 180 days.

In a decision filed March 30, 2005 titled Borges v. Gonzales, the Third Circuit (which covers New Jersey) made a ruling on this issue. Please read the opinion carefully for a full understanding of the ruling. Based on a quick review of the case, it seems that if the immigrant can prove he truly was defrauded, that was sincerely the reason he did not show up for his hearing, and the new motion to reopen was filed very soon after discovering the fraud, then in theory there could be a way to reopen the case even if more than 180 days have passed. In legal terms, the 180-day time limit can be equitably tolled on account of fraud (if proven).

If I am reading this opinion correctly, the decision makes perfect sense. Why not listen to the case of an immigrant who can definitively prove that the only reason he failed to show up for his hearing was that his attorney or notario defrauded him for an extended period of time?

Sunday, April 10, 2005

Documentary videos April 14 at NYIC

On Thursday, April 14th at 6pm, the New York Immigration Coalition will screen two documentary videos, Whose Children Are These? and With Liberty and Justice For All. NYIC is at 275 Seventh Avenue, 9th Floor (between 25th and 26th Streets). RSVP to the NYIC to attend.

Whose Children are These? (approximately 30 minutes) provides a glimpse into the world of three Muslim youth whose lives are impacted by post-9/11 prejudice and discrimination by the federal government's Special Registration policy. The film tells the story of an honors student whose father was put into a detention center, a popular high school athlete who confronts pending deportation, and a youngster who finds a new life's calling to combat bias crimes in New York City as a youth activist.

With Liberty and Justice for All (approximately 30 minutes) follows the personal stories of two immigrants whose lives are dramatically affected by the 1996 immigration reform laws. One story involves a beloved father and husband who faces deportation because he pleaded guilty to a misdemeanor in the 1970s. The other profiles a young activist fleeing persecution and torture only to arrive in the U.S. where he is placed into detention.

Wednesday, April 06, 2005

Sojourner's Ministry at Riverside Church

Information about the Sojourner's Ministry at Riverside Church is available at the Official Riverside Church Web Site

Their Next Orientation Meeting for New Volunteers Is:
Tuesday, April 12, 2005 at 7:30 pm
St. Ignatius Loyola Church
980 Park Avenue at 84 Street

Sojourners Ministry was established in January 1999 to build a group of volunteers to befriend detained asylum seekers extending friendship through visits, letters and book drives. We are working to change the laws that lock up these people who fled persecution, even torture to seek refuge in the United States.

Discussion on Muslim Civil Liberties 4/9/05, Queens, NYC

DISAPPEARED IN AMERICA: Art, Activism & Law in the Age of Insecurity

A panel discussion on Muslim Civil Liberties after 9/11
Preceded by a screening of WHOSE CHILDREN ARE THESE?
Followed by a walk-through of the DISAPPEARED IN AMERICA installation

Saturday, April 9, 2:30 PM
Queens Museum of Art, 2d Floor Auditorium

*Maya Sen, anti-detention activist, spokesperson for Blue Triangle Network

*Rachel Meeropol, attorney, Center for Constitutional Rights; editor of AMERICA'S DISAPPEARED

*Aziz Huq, VISIBLE Collective; attorney at Brennan Center for Justice at NYU Law School on democracy and national security issues

*Tariq Abdel-Muhti, son of Farouk Abdel-Muhti, Palestinian activist and WBAI reporter who died from heart attack from complications during his two-year detention.

*Aimara Lin, national coordinator, Not In Our Name; granddaughter of Japanese-American internees

*Theresa Thanjan, director, WHOSE CHILDREN ARE THESE?

Moderator: Naeem Mohaiemen, Director, VISIBLE, a collective of Muslim and Other Artist-Activists

2:30 PM: Screening of WHOSE CHILDREN ARE THESE? (27 mins)
3:00 PM: Panel Discussion & Q&A
4:30 PM: Walk-through discussion of DISAPPEARED IN AMERICA installation

Refreshments will be served

Tuesday, April 05, 2005

Free Consultation for Low Income Taxpayers

I heard of this clinic that offers assistance to low income taxpayers. I am not affiliated with it and have not used it, but wanted to share information about it with you. It is the Rutgers School of Law- Newark Federal Tax Clinic.

Law students at Rutgers Law School (in Newark) are authorized to represent law income taxpayers without charge in disputes with the IRS regarding an IRS audit, a conference with an IRS appeals officer or district counsel, or a trial in US Tax Court. For information, they ask people to call the Clinic secretary at 973-353-1685.

Si suted tiene un problema con sus impuestos federales y no tiene
representacion legal usted podria calificar para representacion legal gratuita con Rutgers Federal Tax Clinic a 973-353-1685.

Oppose the REAL ID Act

Now is the time to call your Senator and urge them to oppose the REAL ID Act (H.R. 418). The proposed law would simply prevent some of the people fleeing persecution from obtaining the asylum status they deserve while granting unprecedented powers to a federal agency. Also, by denying driver's licenses to numerous tax-paying people, it will create a dangerous situation of uninsured drivers forced to drive without a valid driver's license, which will drive people underground and have them fall out of the DMV databases. Encouraging people to live in the United States without any government record is not going to improve national security.

The REAL ID Act also combines a series of unrelated ideas, each of which is dubious when studied closely.

Imposing guilt by association. It would require non-citizens somehow to prove that they are not guilty by association with anyone the government thinks is related to terrorism.

Suspending the writ of habeas corpus in several cases. It would suspend the writ of habeas corpus, which has not been done for over a century, for certain types of cases. Although Congress certainly has the power to do this, the fact it has not been done in over a century shows that it is not a reasonable thing to do. (When Congress suspended the writ during the Civil War, it quickly reinstated it.)

Monday, April 04, 2005

Popover Baby product for babies

Ever considered a popover for the baby? A popover is a newly invented fleece baby outer-garment that is a new, lightweight way to keep a baby insulated and warm while being carried around in a baby carrier, car seat, or stroller! It is being sold at the new web site for Popover Baby (

New York Immigration Hotline: 800-566-7636 or 212-419-3737

The New York Immigration Hotline is 800-566-7636 or 212-419-3737.

The only multilingual information and referral resource for New York's immigrant community is the free New York Immigration Hotline. They are not part of the federal government's immigration service (which used to be known as INS).

According to their literature, they offer general immigration information and make specific referrals for help on:

* Immigration law and benefits
* Discrimination and legal rights
* Employment
* Health and mental health
* Language resources
* Federal, state, and city services

All phone calls to the hotline are also anonymous and the conversations are kept confidential. But please note that the hotline does not offer legal advice. Questions about individual eligibility are referred to legal services agencies for formal immigration consultations.

Please understand that we are offering this information to you as a public service and that this is not legal advice. You should call the hotline and decide for yourself whether you need to obtain legal advice from a qualified agency or lawyer to address any specific questions or issues that you have!

Toll-free Hotline: 800-566-7636 or 212-419-3737

Tiene alguna pregunta sobre immigracion? Llama la linea de inmigraciÛn para Nueva York! Le podemos ayudar.

800-566-7636 (en NYC) o 212-419-3737.

La literatura de la linea de inmigracion dice:

Ofrecemos informacion en varios idiomas y referimos a diversos servicios. Las llamadas se mantienen anonimas y las conversaciones confidenciales. No estamos afiliados con el Servicio de Inmigracion y Naturalizacion. (Un proyecto de Caridades Catolicas, Servicios a Inmigrantes y Refugiados, Arquidiocesis de Nueva York y La Oficina de Asistencia Temporal para Incapacitados del Estado de Nueva York.)

Interesting Income Tax Figures

According to IRS figures, in tax year 2001 the percentile breakdowns for adjusted gross income (AGI) were: (e.g. if your AGI was over $1.3 million, you were in the top 0.1%)

top 0.1%: 1,324,487
top 1%: 292,913
top 2%: 199,620
top 3%: 161,491
top 4%: 140,721
top 5%: 127,904
top 10%: 92,754
top 25%: 56,085
top 50%: 28,528

Astoundingly, the average tax rate of the top 0.1% was only slightly greater than those in the top 5%. Most tax structures have much higher tax rates for those who earn the most. The top 0.1% had an average tax rate of 28.2%, while the top 5% was taxed at 23.68%, and the top 10% was taxed at 21.41%.