THE ImmigrationArtVideo CHANNEL on YouTube: Deferred Action / Obama DREAMer Program Started 8/15/2012

Congress never passed the DREAM Act. We've been waiting over a decade now. So, President Obama has taken action -- he has ordered the USCIS to use the rules currently on the books to help those who would have otherwise qualified for the DREAM Act. The action ordered by President Obama is called "Deferred Action for Childhood Arrivals" (DACA). Here at Immigration Art, we call it the "Deferred Action / Obama DREAMer Program"

This video explains the President's plan, points out the benefits, explores the risks, and asks that you proceed with caution under the President's plan.The ImmigrationArtVideo Channel: Deferred Action / Obama DREAMer Program

Homeland Security Sued over Immigrant Detention

The National Immigrant Justice Center in Chicago has filed a class-action suit challenging the use of immigration "detainers" -- requests by federal immigration authorities for local police to hold immigrants in jail while their status in investigated.

Read the Los Angeles Times for this news.

Gay Couples in Legal Limbo with Immigration

The July 14 Los Angeles Times has a good article about gay couples who are placed in legal limbo in the immigration process. Married same-sex couples find that their commitment has no standing in the eyes of immigration agents when one partner isn't a citizen. The Obama Administration suggests that these cases are a low priority for removal, but that provides little comfort and no guarantee against deportation.

Read the full article here.

Deportations to Haiti Resume

In light of the earthquake in Japan, this post revisits another earthquake ravaged nation and its ongoing relationship to U.S. Immigration Policy.

One of the poorest countries in the world, Haiti was struck by a catastrophic quake on January 12, 2010.  In the days after the disaster, the U.S. Government announced it was halting deportations to the country. In January of 2011, the U.S. Government resumed deportations to Haiti.  DHS plans to deport some 700 persons back to the country this year.

Immigration advocates and those facing deportation to Haiti have pleaded for a halt to the deportations, citing “inhumane conditions” in Haiti.  A cholera epidemic reportedly has killed more than 4,000 people since October. One of the 26 detainees sent to Haiti in the first wave of the resumed deportations was Wildrick Guerrier.  Upon his return, he suffered choleralike symptoms and later died.  Before being deported, he had participated in a hunger strike and stated that deportation to Haiti amounted to a death sentence.

U.S. Immigrations and Customs Enforcement is currently seeking feedback on its resumed deportation policy.  The new draft policy was posted on March 7, 2011.  The document, which is the first written policy issued regarding the resumption of deportations to Haiti, comes three months after DHS announced its plan to resume deportations and more than six weeks after deportations actually began.

Read an article regrading the deportations here.
Read an article regarding the earthquake here.
Read the draft policy here.

Long Awaited DHS Report Released

Prince William County filed suit against the Department of Homeland Security ("DHS") on Tuesday over its refusal to provide information regarding Carlos Martinelly-Montano, an illegal immigrant charged with killing a nun in a alcohol related car crash last August.


DHS claimed that it could not release the information requested due to Immigration and Customs Enforcement privacy policies.


On Friday, however, DHS released a report of ICE's Inquiry into the matter to Judicial Watch, a conservative watchdog group, who along with others, also sued the DHS under the Freedom of Information Act.  The report indicates that Mr. Martinelly-Montano had been released by immigration authorities while awaiting deportation because he had demonstrated that he was not a flight risk.


View the Report here.
Read Washington Post Article here.
Read Washington Examiner Blog Post here.

Immigration Court's Case Backlog Reaches Record High

According to Transactional Records Access Clearinghouse, a non-partisan research organization that operates out of Syracuse University, the number of cases pending before Immigration courts reached a record high at the end of 2010.  At the end of December, the number of cases awaiting resolution in Immigration courts was roughly 268,000.  The backlog has increased by 44 percent since 2008 with cases pending 467 days on average.

Read the report here.
Read the article here.

Virginia Supreme Court Denies Audita Querela & Coram Nobis Post-Conviction Relief

In January, the Virginia Supreme Court issued its decision in two cases concerning the availability and application of post-conviction relief from removeability in Virginia state courts (Commonwealth v. Morris and Commonwealth v. Chan). At issue were two ancient writs, the writ of audita querela and the writ of coram nobis, which Morris and Chan argued were available to alter the criminal sentence of an alien long after it was originally imposed in order to avoid harsh immigration consequences such as deportation.

The Court held that the write of audita querela was simply not an available form of post-conviction relief in Virginia, despite its availability in a number of other jurisdictions.  The Court also held that ineffective assistance of counsel did not constitute and error in fact for the purposes of the writ of coram nobis.

Read the opinion here.
Read Washington Post article here.

Court Orders Government to Provide Counsel to Mentally Incapacitated Aliens in Deportation Proceedings

As a general rule, aliens in deportation proceedings are not provided with legal counsel at taxpayer expense when they cannot afford to hire counsel on their own.

Recently, however, a Federal District Court Judge in California ordered the U.S. government to give a group of mentally incapacitated illegal immigrants legal representation to fight their deportations. In March, a group of attorneys and the ACLU of Southern California argued that the men's diminished mental capacities made them unable to represent their own interests.

The case involved a number of indigent, mentally incapacitated plaintiffs including Jose Franco-Gonzalez, 30, who spent nearly five years in immigration custody after pleading guilty to assault with a deadly weapon because authorities determined he was too mentally incompetent to represent himself in his own deportation hearings.  The U.S. District Court Judge hearing the case ruled that Franco and another plaintiff be released and that additional plaintiffs in the case be given representation for their hearings. 

Review the Complaint here.

Private Legislation

Every year, large numbers of noncitizens with compelling circumstances are removed from the United States because their cases do not fall squarely within the ambit of existing immigration laws.  One potential avenue for addressing the shortcomings of current immigration laws on a case-by-case basis, without comprehensive immigration reform, is through the private legislation process.  Private legislation can be used to provide a much-needed remedy which is lacking under existing law in a particular case.

Successful use of private immigration legislation is rare.  Recently, however, Virginia's own Senator Jim Webb sponsored a private bill for the Japanese widow and son of an American Marine killed in Iraq.  Immigration refused to recongize the marriage despite the fact that it had been recognized by the military.   The first successful private immigration bill since 2006, the bill passed the House on Wednesday and now awaits the President's signature.

Read more about the Private Bill here.

Virginia Supreme Court to Consider Post-Conviction Relief for Aliens

On November 1, 2010, the Virginia Supreme Court will hear oral arguments in two cases concerning the availability and application of post-conviction relief from removeability in Virginia state courts (Commonwealth v. Morris and Commonwealth v. Chan).  At issue are two ancient writs, the writ of Audita Querela and the writ of Coram Nobis.  These writs allow a trial court to alter the criminal sentence of an alien long after it was originally imposed in order to avoid harsh immigration consequences such as deportation. 

The writ of Audita Querela is a common law writ dating back to 1329 which historically permitted a defendant to obtain relief from a judgment because of some defense or discharge arising subsequent to its rendition.  It has been used in criminal cases by a number of federal courts and Virginia trial courts to prevent substantial injustices. 

The writ of Coram Nobis (also called Coram Vobis), unlike Audita Querela, has been codified in Virginia.  It allows a trial court to correct its own record with reference to a vital fact not known when the judgment was rendered and could not have been presented by a motion for a new trial, appeal or other statutory proceeding.  The writ is available where the error of fact is not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented rendition of the judgment. 

These forms of relief are particularly important in cases where an alien's attorney fails to advise the alien that taking a plea deal for a seemingly small misdemeanor under Virginia law can lead to mandatory detention and deportation under immigration law, even where the alien serves no time in jail.  Earlier this year, the U.S. Supreme Court found that this type of failure to advise constitutes ineffective assistance of counsel. Where other avenues, such as habeus relief are already time-barred, these two writs often present the last possibility of relief from removal.

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.

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.