Tuesday, August 31, 2010

ICE Memo Indicates Changes in Handling of Removal Proceedings for Aliens with Pending or Approved Petitions for Relief

Under current removal practices, a petition pending before USCIS may create delays in removal proceedings. Indeed, according to the Executive Office for Immigration Review (EOlR), in July of 2009, some 17,000 removal cases were continued pending the outcome of USCIS decisions on petitions. Recognizing that many of these cases may ultimately result in relief for the alien, ICE has revised its policy on handling these cases with the goal of promoting docket efficiency and saving resources.

The resulting policy, as detailed in an August 20, 2010, memorandum by Assistant Secretary John Morton, calls for ICE to request expedited adjudication by USCIS (30 days for detained and 45 days for non-detained aliens) in these cases. Additionally, where there is an underlying application or petition filed with USCIS by or on behalf of a detained alien and ICE determines that the alien appears eligible for relief from removal, upon a determination that no adverse factors such as criminal convictions are present, ICE should promptly move to dismiss the proceedings without prejudice.

The policy, when fully implemented, may help reducing the backlogs in the immigration courts and reduce overcrowding within the ICE detention system.

Read the full memo here.

Monday, August 23, 2010

ICE Announces Civil Enforcement Priorities

In a memo released June 30, 2010, Immigration and Customs Enforcement (better known as ICE) formally announced its priority system for enforcing civil immigration laws.

The memo, penned by ICE Assistant Secretary John Morton, notes that ICE only has sufficient resources to remove about 400,000 aliens (less than 4% of the estimated illegal alien population) per year.  As a result, ICE now has a priority system for allocating its resources.

According to the memo, the following three categories represent ICE's civil enforcement priorities, with (1) being the top priority and (2) & (3) constituting equal but lesser priorities:

(1) Aliens who pose a danger to national security or a risk to public safety;
  • This category includes:
    • Aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
    • Aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders;
      • Where aliens convicted of crimes are concerned, the memo instructs ICE personnel to refer to the new Secure Communities Program offense levels, with Level 1 & 2 offenders receiving principal attention.
      • The Levels are as follows:
        • Level I : aliens convicted of"aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as "felonies";
        • Level 2: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors"; and
        • Level 3: aliens convicted of crimes punishable by less than one year.
    • Aliens not younger than 16 years of age who participate in organized criminal gangs;
    • Aliens subject to outstanding criminal warrants; and
    • Aliens who otherwise pose a serious risk to public safety.
(2) Recent illegal entrants; and
(3) Aliens who are fugitives or otherwise obstruct immigration controls.

The priority system set out in the memo suggests that the number of removal actions against "criminal aliens" may soon be on the rise.  Additionally, the new policy makes it all the more important that attorneys understand the immigration consequences of criminal convictions for their clients.

Click here to read the memo in full.

Sunday, August 22, 2010

Virginia Congressmen Support 287(g) Authority for State Police.

Three Virginia Congressmen have announced their support for Governor McDonnell's request to allow state troopers to act as immigration and customs agents.  In an August 18, 2010 letter to Secretary of Homeland Security Janet Napolitano, Rep. Frank R. Wolf (R-VA), Rep. Robert J. Wittman (R-VA) and Rep. Gerald E. Connolly (D-VA) stated that the "proposed partnership between the Department of Homeland Security and the Commonwealth of Virginia will improve information sharing, leverage federal and state resources, and above all, contribute to improved public safety."

See full article in the Washington Post.

Wednesday, August 18, 2010

Padilla v. Kentucky

As immigration practitioners undoubtably know, immigration law is often quite severe when it comes to the consequences of criminal convictions.  Unbenownst to many criminal law practitioners, the unique severity of deportation often turns a seemingly advantageous plea deal into an immigration nightmare. 

On March 31, 2010, the U.S. Supreme Court addressed this issue and held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The Court ruled that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.  Writing for the majority, Justice Stevens stated that, "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."

As the Court noted, immigration law is notoriously complex.  The Immigration group welcomes referrals and consultations on the immigration consequences of criminal convictions.

To learn more about Padilla, read the opinion and a practice advisory.

Thursday, August 12, 2010

Virginia Governor Requests 287(g) Immigration Authority for State Police.

In a letter to U.S. Department of Homeland Security Secretary Janet Napolitano, Virginia Governor Bob McDonnell requested a grant of immigration authority for state police under section 287(g) of the Immigration and Nationality Act.  Section 287(g) establishes a mechanism for formal cooperation between the DHS and state and local law enforcement agencies. 

A number of Virginia police departments are already participating in the 287(g) agreements.  According to the U.S. Immigration and Customs Enforcement website, the following law enforcement agencies currently have 287(g) agreementsCity of Manassas Police Department, Herndon Police Department, Loudoun County Sheriff's Office, Manassas Park Police Department, Prince William County Police Department, Prince William County Sheriff's Office, Prince William-Manassas Adult Detention Center, Rockingham County Sheriff’s Office, and Shenandoah County Sheriff’s Office.  

The program permits designated law enforcement officers to perform immigration law enforcement functions.  The local law enforcement officers must receive appropriate training and function under the supervision of U.S. Immigration and Customs Enforcement (ICE) officers.

Read Governor McDonnell's letter here.
Visit the U.S. Immigration and Customs Enforcement 287(g) webpage here.
See the text of 287(g) (codified at 8 U.S.C.1357(g)).

Tuesday, August 10, 2010

Second Simple Possession Conviction is Not Necessarily an Aggravated Felony.

In a recent decision, Carachuri-Rosendo v. Holder, No. 09-60, 560 U.S. ___, 2010 U.S. LEXIS 4764 (2010), the United State Supreme Court decided that a second simple possession conviction was not an aggravated felony under INA § 101(a)(43)(B).  At issue in the case was whether a second or subsequent state conviction would automatically be deemed as an aggravated felony by virtue of hypothetical qualification as federal felony recidivist possession.  The court indicated that it was proper to look at what was charged, as opposed to what might have been charged.  As a result, a second simple possession conviction generally will not be deemed an aggravated felony, precluding application for cancellation of removal or other forms of relief, unless there is a clear showing of recidivism within the state prosecution. 

The case resolved a split in the circuits which developed following the Supreme Court's 2006 ruling in Lopez v. Gonzales, 549 U.S. 47 (2006).  In that case, the court held that simple possession convictions which are state felonies, but would not be punishable as felonies under federal law, are not aggravated felonies as defined by INA § 101(a)(43)(B).

You can find the full opinion here.

Monday, August 9, 2010

Virginia's Attorney General Issues Controversial Immigration Opinion.

Virginia Attorney General Ken Cuccinelli recently caused quite a stir when he issued an immigration related memo dealing with the ability of police to inquire into immigration status of persons they have stopped or arrested.  The advisory opinion, providing that police may make such inquiries, was issued in response to a request by Del. Bob Marshall.

The ACLU promptly responded by encouraging Virginia law enforcement officials to disregard the memo, noting that it raises some of the same issues and concerns as controversial Arizona state legislation, parts of which were temporarily halted by a federal judge last week.

View the memo and the ACLU's response.

Friday, August 6, 2010

Born in the USA!

Adding fire to the already intense debate over immigration, some groups are now advocating a change in the law regarding the most common source of citizenship, birth in the United States.  At issue is the 14th Amendment to the United States Constitution.  Adopted in 1868, this Amendment states in part that, "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  Some proponents of a change in the law argue that a new amendment is necessary.  Others suggest that perhaps this part of the 14th Amendment has been misinterpreted from the beginning.

Read two of NPR's informative discussions of the issue:
Or check out an in-depth discussion of the case law dealing with this issue on AILA's Blog.

Increase in Deportations under Obama Administration

According to the Washington Post, Immigrations and Customs Enforcement (better known as ICE) expects to deport around 400,000 people during the government's 2009 fiscal year!  This is a 10% jump over 2008 and a 25% increase over 2007's numbers!

Read the full article here.

The Immigration Law Group provides deportation/removal consultation and defense services.  Contact us with questions or to set up a consultation.

Introducing Vandeventer Black's Immigration Law Blog

Welcome to Vandeventer Black’s Immigration Law Blog!  The Blog is yet another way that the Immigration Law Group communicates with clients, both past and present, as well as those interested in our services or immigration matters in general. 

Who we are: 

The Immigration Law Group provides a full range of immigration services for businesses and individuals from visa applications to green cards to deportation defense.
We represent businesses currently located, or seeking to locate, in the U.S. with strategies to help expedite and facilitate the transfer of managers, executives and other personnel to their U.S. operations. The Immigration Law Group also provides wide-ranging assistance for the families of foreign national workers and with other types of family-based cases.

Our established, full-service practice provides complete preparation of the full range of immigrant and nonimmigrant petitions and visa applications. We also handle all aspects of permanent resident applications (green cards), including PERM labor certifications, intracompany transferees, extraordinary ability petitions, outstanding professors and researchers, national interest waivers, religious workers, health care professionals, and family-based petitions. We skillfully prepare nonimmigrant petitions for H professionals, L intracompany transferees, E treaty traders and investors, B-1 business visitors, O and P outstanding and performing individuals, R religious workers and TN Canadians.

Vandeventer Black assists employers with compliance under the employer sanction provisions of the Immigration and Nationality Act, including counsel on the implementation of I-9 processes and procedures and avoiding civil and criminal fines and penalties under the Act.

We also assist aliens in defending against deportation notices, recognizing that tough immigration removal rules and criminal charges can subject visitors to deportation all too frequently. We defend cases in immigration court, and have experience in asylum, waivers, adjustment of status, immigrant visas, and criminal consequences. In removal cases, members of our Immigration Law team have secured sentence reductions in state criminal court and sentence commutations from the governor to eliminate immigration consequences resulting from criminal convictions. Our long history of handling immigration matters and working with the U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor enables Vandeventer Black to provide effective and efficient service to our clients.