Cancellation of Removal

How to Stop Removal Proceedings with Administrative Closure

By Peek & Toland on August 4, 2021

We’ve recently covered prosecutorial discretion and how immigration court cases for removal may be dismissed or postponed. We’re going to look at some great news from the Board of Immigration Appeals (BIA) that will affect anyone who is currently wading the backlog of U.S. immigration proceedings and is at risk for removal.

On July 15, Attorney General Garland issued a decision on a previous decision to end the practice of administrative closure made by Attorney General Sessions under the guise of security from the Trump administration and its more restrictive immigration policies.

The new decision to reinstate administrative closure is a form of relief for immigrants facing deportation and also for judges and the court backlog of immigration active docket cases under review.

Let’s take a look at this prosecutorial discretion tool and how it can affect your legal status in the U.S.

What is administrative closure?

Administrative closure is a docket management tool that could be used to temporarily pause removal proceedings – – administrative proceedings to determine an individual’s removability under United States immigration law.

What does administrative closure do?

The use of administrative closure does not entirely terminate or dismiss an immigration case. But it allows the court system to remove an immigration case from an immigration judge or from the Board of Immigration Appeals’ (BIA) docket, which has an overwhelming backlog of immigration cases to review.

It might sound like this practice of prosecutorial discretion is for the benefit of immigration judges, and it is, but it could actually benefit many immigrants who are facing immigration proceedings.

How does administrative closure affect your immigration case?

We all know that there are plenty of hard-working immigrants here with illegal status. Many who are at risk for deportation have built their lives in the U.S. and have families who rely upon them. Unfortunately, a great deal of these people happen to be in the middle of removal proceedings, even though they have a clear pathway to residency and have been a great asset to their community.

It’s clear that DACA dreamers, immigrants here seeking asylum, and immigrants with spouses and family are on the road to legal status in the U.S. However, it’s still under the discretion of an immigration judge and the prosecutor to determine who should and should not be facing a case of imminent removal from the U.S.

Through this prosecutorial discretion, an immigration court judge can focus on factors that make certain immigrants more deserving of legal status and the reasons that some undocumented people should remain in the backlog of removal proceedings.

Illegal immigrants with pending removal from the U.S. who have not committed serious and violent offenses are much more likely to receive a favorable decision from the office for immigration review.

To administratively close a pending immigration case, this form of prosecutorial discretion allows an immigration attorney to form a very strong application to approach the prosecutor and argue the merit of an upstanding immigrant who is on the cusp of residency in the U.S.

The data has shown the Trump administration and their decision to end this form of prosecutorial discretion have only worked to create a more dense backlog of immigration court cases pending review. Hence, the decision to reinstate this practice is music to our ears.

Prosecutorial discretion is an amazing tool and form of relief for the immigration court’s attempt to get back to a better functioning level of government, but more importantly, it’s another means for immigrants to quickly move forward on a pathway to some kind of status in the U.S.

If you have questions about your immigration status and whether or not you or someone you love are in deportation proceedings, it’s important to have a trusted and experienced immigration lawyer to take advantage of the practice of administrative closure and report the merits of your case to the BIA.

Reach out to one of our trusted immigration attorneys to see if this decision might be the opportunity for you or your loved one to get out of deportation proceedings and stay in this country until a legal status can be obtained.

We will continue to report the news from immigration courts that affect you and our American immigration process.

Posted in Cancellation of Removal, Immigration

Outcry as ICE Arrests Immigrants in New York City Courts

By Peek & Toland on May 22, 2018

The issue of ICE agents picking up undocumented immigrants in unrelated court proceedings has proved to be a contentious flashpoint under the Trump administration.

In December, a court building in Brooklyn became the latest flashpoint in the immigration tussle.

A report in The Nation noted Genaro Rojas-Hernandez was attending a criminal court for an unrelated assault charge. He is an undocumented immigrant.

He was arrested by Immigration and Customs Enforcement (ICE) agents at the court. The Nation article claimed the incident highlighted a new constitutional crisis unfolding in New York’s criminal-justice system.

ICE arrests in New York

ICE Arrests in the Big Apple are Under Fire

Since the inauguration of Donald Trump as president in January 2017, courts in New York City saw a massive 900 percent spike in the number of immigrants who were targeted by ICE immigration agents.

While the immigrants would usually be taken into local custody, they are instead being picked up by the feds. Activists accuse the president of attacking the rights of migrant communities as well as constitutional justice itself.

The Nation report noted women seeking temporary protective orders, the survivors of human trafficking, and others dealing with family disputes may be picked up by ICE agents.

The report accused ICE of becoming the judge, jury and the jailer of migrants who come to court to deal with a wide range of issues from domestic violence to traffic infractions.

According to the Immigrant Defense Project, 112 ICE arrests and near-arrests were documented in the New York area in 2017.

Of these, 15 were found to be legal migrants who hold green cards.

New York is not the only place to see undocumented immigrants arrested in courts by ICE agents.

In February 2017, the arrest of a transgender woman who was claiming to be a victim of domestic violence by ICE agents at a courthouse in El Paso caused an outcry.

According to CBS News, County Attorney Jo Anne Bernal stated the undocumented woman received a protective order over a domestic violence claim. Judge Joe Gonzalez gave her a protective order. She filed three police reports. The last report claimed she was the victim of an alleged assault with a weapon.

Media reports stated ICE agents followed the woman into the hallway after the hearing. They arrested her and she was removed an immigration detention facility.

Bernal complained an immigration arrest of this nature had not happened in the two decades she worked at El Paso courthouse.

Our Texas family immigration lawyers help people who are facing deportation and their families across the state. Please call us at (512) 474-4445.

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Immigration Cases May be Overloading Federal Courts

By Peek & Toland on May 4, 2018

Concerns that immigration cases are overloading the federal courts may lead to the appointment of more judges.

A recent article in the National Review suggested the new tax reform bill could lead to the appointment of additional judges.

The article noted President Donald Trump appointed a mere eight of 169 federal appeals-court judges as of the end of 2017.Although judges have been hired in immigration courts, the backlog keeps on growing.

A report on TRAC Immigration noted that the backlog in the immigration courts continues to rise. As of the end of April 2017, the number of cases awaiting a decision hit an all-time high of 585,930.

immigration cases cause too much workload

Immigration cases overload courts

On average people with cases wait 670 days, and often have to wait much longer before their cases will be heard.

Nine courts face particularly challenging caseloads and account for a quarter of the backlog. Some parties are waiting more than four additional years before a hearing is scheduled. In San Francisco, the immigration court has nearly 42,000 backlogged cases. Some people are waiting for more than five additional years, a staggering 1,908 days longer, for their July 21, 2022 hearing date.

Over the past 18 months, the court has been adding new judges. That’s in sharp contrast to 2013 and 2014 when very few judges were added. A total of 79 new immigration judges were sworn in since November of 2015. Funding for a further additional 10 judges also has just been approved by Congress.

In 2017, we noted how the pressures on the immigration courts may increase dramatically under the Trump administration as more people go into deportation proceedings.

Texas has one of the most significant immigration case backlogs in the country.

Immigration courts had a backlog of 89,000 cases in Texas in 2016. In Houston alone, cases struck in the immigration courts rose from 6,423 to 36,136 from 2010 to 2016, according to the report.

We noted there are a mere six immigration judges on the bench in Houston. The immigration court’s caseload is expected to double by 2019 unless additional judges are taken on.

The backlogs rose during the Obama administration when deportations were ramped up. The emphasis on deportation has continued under the Trump administration.

The pressures on immigration courts mean legal proceedings involving undocumented immigrants are very stressful and can fragment families. Our Texas family immigration lawyers can help with your case. Call us today at (512) 474-4445.

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Mexican Immigrant is Detained by ICE for Talking to the Press

By Peek & Toland on May 1, 2018

When you are an undocumented immigrant, you may face threats and dangers not experienced by those who are lawfully in the United States. Recently, a Mexican man said he was detained by ICE for talking to the press.

A report in The Independent noted Baltazar Gutierrez, an immigrant clam harvester in Willapa Bay, Washington was arrested in December by Immigration and Customs Enforcement (ICE) officials.

The Mexican national said immigration officers picked him up after he spoke with reporters about the suspicious circumstances surrounding the deportation of his girlfriend.

Gutierrez told the Seattle Times  that U.S. Immigration and Customs Enforcement officers arrested him and spoke of an interview he had once given related to his girlfriend.

Gutierrez claimed he was targeted by ICE agents after he spoke with two local media outlets. ICE agents detained his girlfriend in June 2017. He not named in the story, only identified by his nickname, “Rosas,” in one of the news stories.

 detained by ICE for talking to the press

An immigrant is detained by ICE for talking to the press

An ICE spokesperson denied that the federal agency targets immigrants for retaliatory reasons. However, media requests to ICE to clarify the role the media story may have played in Gutierrez’s arrest were not immediately returned, the Independent reported.

Gutierrez lived in the United States for 18 years. worked 10-hour days since traveling to Washington State. On the west coast, he met his girlfriend, Gladys Diaz. They built a life together there, and had children, until her arrest in June.

Media reports said Diaz sold piñatas on the side. She was arrested when she met someone who had answered an online ad she had posted for her piñatas.

Diaz was also undocumented. The Independent report stated agents said that they were arresting Diaz over a prior deportation order after she was caught sneaking over the border decades ago.

The arrest and deportation of Diaz and that Gutierrez again highlight the controversial immigration policies of the Trump administration.

While ICE maintains it prioritizes criminal aliens living in the US unlawfully for deportation, critics argue the President has broadened the definition of who can be considered a threat.

Of approximately 11 million undocumented immigrants living in the United States, about 3 million have criminal records. The Trump administration faces a major uphill task in deporting this many people.

If you or a family member is facing deportation proceedings, contact our Texas family immigration attorneys as soon as possible at (512) 474-4445.

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Poll Finds More Texans Oppose Deportation of Dreamers

By Peek & Toland on April 13, 2018

The termination of Deferred Action for Childhood Arrivals (DACA) raises the prospect of the deportation of Dreamers. It’s not a popular notion, according to a recent poll.

The University of Texas/Tribune Poll found most voters in the state are opposed to the idea of these young immigrants being sent back to their home nations.

The Dreamers are young people who came to the United States as children. Many were given temporary rights to work and be free from the threat of deportation under the Obama era DACA.

In September, the Trump administration signaled the end of DACA.

Three-fifths of the registered voters surveyed in the poll said they would continue the Deferred Action for Childhood Arrivals, or DACA, program. Just 30 percent said the program should end.

Unsurprisingly, there was a split along party lines. Democrats strongly favor continuation (86 percent.) However, 39 percent of Republicans would do so.

The study found more than a fifth of Hispanics said they would end the DACA program, while 64 percent said they’d keep it.

The survey found a narrow majority of Texans disagree that undocumented immigrants currently living in the state should be deported immediately.

Poll finds many oppose the deportation of Dreamers

Deportation of Dreamers is controversial

The partisan split was again present. Just 19 percent of Democrats agreed with deportation, while 64 percent of Republicans agreed. Fifty percent of white voters wanted deportation of undocumented immigrants. The figure was 37 percent for black voters and 36 percent for Hispanic voters.

Jim Henson, co-director of the poll and head of the Texas Politics Project at the University of Texas at Austin, alluded to some nuance in the poll, the Tribune reported.

He said Hispanics in Texas are not known for being liberal.

In the survey, most Texans said local law enforcement agencies should cooperate with federal immigration authorities. They included 67 percent of white voters, 44 percent of Hispanic voters and 45 percent of black voters.

Men were found to be 10 percentage points more likely to support cooperation between federal and local authorities than women.

Strong support for Dreamers against deportation was shown in national polls. A poll published last October by the Associated Press-NORC Center for Public Affairs Research found just one in five people favored the deportation of Dreamers.

Approximately 800,000 young immigrants received a deportation reprieve under Obama’s Deferred Action for Childhood Arrivals plan. Trump gave notice on the program in September. He gave Congress six months to act on a replacement.

About 60 percent of Americans favor allowing those young immigrants to stay in the U.S. legally, compared to 22 percent who are opposed, the national poll found.

If you have an immigration matter, please call Peek & Toland . Our lawyers are passionate about our client’s legal needs. Call us at (512) 474-4445.

Posted in Cancellation of Removal, Immigration, Immigration Reform

Undocumented Girl Who was Detained After Surgery Was Released

By Peek & Toland on April 10, 2018

The case of an undocumented girl held in an immigration facility after surgery in Texas sparked an outcry. The issue appeared to be resolved in November 2017 when a lawmaker confirmed the girl was reunited with her family.

Rosa Maria Hernandez, noted the Texas Tribune, has cerebral palsy. Immigration authorities detained the girl after gallbladder surgery. Although she is undocumented, she lived in Texas since she was 3 months old.

However, Hernandez was taken into federal custody after she and her family were traveling from Laredo in the fall of 2017. They passed through a U.S. Border Patrol checkpoint in Freer.

The girl was having surgery. Federal agents escorted her to a Corpus Christi hospital after she and her cousin, a U.S. citizen, traveled through the checkpoint. The agents waited until Rosa Maria’s gallbladder surgery was over. They informed her family she could return to Mexico voluntarily or go through court proceedings.

Undocumented girl was detained after surgery

Undocumented girl had surgery in Texas

Customs and Border Protection said in a statement it is committed to enforcing the nation’s immigration laws. It stated:

“Due to the juvenile’s medical condition, border patrol agents escorted her and her cousin to a Corpus Christi hospital where she could receive appropriate medical care. Per the immigration laws of the United States, once medically cleared she will be processed accordingly. The Mexican Consulate has been advised of the situation by Laredo Sector Border Patrol.”

The episode provoked an outcry. Lawmakers including U.S. Rep. Joaquin Castro called for the girl’s release.

On Nov. 3, Castro said the girl was united with her family, the Tribune reported.

Although he welcomed the fact federal agents backed off, Castro said the girl has an uncertain future ahead of her.

The case highlights the real uncertainties undocumented immigrants face in the United States in the current era. Although the Trump administration has pledged to prioritize undocumented immigrants with criminal records for deportation, others have been picked up in raids.

Although immigration centers are used to hold undocumented adults and families apprehended at the border, it’s unusual for a child living in the United States to be arrested. The New York Times reported it was almost unprecedented for a child with a serious medical condition to be held in this manner.

Rosa Marie was held 150 miles away from her parents in Laredo who are also undocumented.

Undocumented immigrants across the Lone Star State face difficult and frightening times. If you need assistance with an immigration matter contact our experienced Austin-based family immigration law firm.

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Definition of Crime of Violence in the Supreme Court Has a Bearing on Immigration Law

By Peek & Toland on April 2, 2018

The definition of the term a “crime of violence” and its use to expel migrants to the United States was discussed by the U.S. Supreme Court in September 2017.

The case of Sessions v. Dimaya, considered whether the authorities can use the definition “crime of violence” to expel an offender whose crime involved no violence.

The case goes to the heart of the immigration statutes that control whether thousands of undocumented immigrants and green card holders are deported every year.

Crime of violence is considered by U.S. Supreme Court

Supreme Court considers definition of a crime of violence

During September’s hearing, Justice Neil Gorsuch noted the due process clause does not include the criminal/civil distinction used by the government. He said under the Constitution:

 “The Due Process Clause speaks of the loss of life, liberty, or property. It doesn’t draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right of self-incrimination, for example.”

Deputy Solicitor General Edwin Kneedler argued that the federal government has traditionally enjoyed broad discretion in the enforcement of the immigration laws.

James Garcia Dimaya is a lawful permanent resident. He immigrated to the United States from the Philippines in 1992. He was convicted of burglary on two occasions but the offenses did not involve violence.

This cut little ice with the immigration court and the Board of Immigration Appeals. They concluded that the convictions were for “crimes of violence,” and Dimaya was removed from the United States. Dimaya later appealed the board’s order to the U.S. Court of Appeals for the 9th Circuit

The Washington Post noted many of the Supreme Court justices including Gorsuch seemed uneasy about the vagueness of the immigration statutes as related to the definition of a crime of violence.

The decision in the case could have wide-ranging implications. The Post noted if the highest court in the land is to tighten up terms such as “crime of violence,” it may have implications for even more vague terms like “sanctuary city.”

While the Trump administration has taken aim at sanctuary cities, this is not a term that’s even defined in any laws or regulation and has been used vaguely.

While the president and Congress have discretion in the immigration realm, its discretion is not unlimited. The courts have the last say.

If you or a family member is facing possible deportation, please contact our experienced Austin family immigration lawyers.

Posted in Cancellation of Removal, Criminal Defense, Immigration

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Supreme Court Looks at Filipino Legal Immigrant Deportation Case

By Peek & Toland on March 13, 2018

The question of whether a Filipino legal immigrant can be deported from the United States was recently discussed by the U.S. Supreme Court.

The high court considered whether a Filipino legal immigrant convicted of two home burglaries in California could be deported. The justices heard the wording of the federal law used to determine whether he could be removed from the U.S. was so unconstitutionally vague it could not be enforced in the criminal courts.

According to the Los Angeles Times, James Garcia Dimaya pleaded no contest to charges of residential burglary in 2007 and 2009.

The Filipino was admitted to the U.S. as a lawful permanent resident when he was 13, reported the Los Angeles Times.

The Board of Immigration Appeals decided one of the convictions was an “aggravated felony.” It agreed with the Homeland Security Department that Dimaya should be deported.

Supreme Court looked at Filipino Legal Immigrant deportation

Supreme Court considered Filipino Legal Immigrant deportation

That definition of an “aggravated felony” was later questioned. The U.S. 9th Circuit Court of Appeals. It overturned the decision of the Board of Immigration Appeals, halting the deportation.

It stated the definition of “aggravated felony” as used in immigration law contained a definition of “crime of violence” similar to a different law the Supreme Court concluded was too vague to be constitutional in 2015.

During oral arguments in the Supreme Court, Deputy Solicitor General Edwin S. Kneedler said the law at issue in the Dimaya case was not impacted by the same vagueness problem. Kneedler said even if it was, immigration is distinctive and deportation should not be a punishment for a past offense.

He argued even if the law was overly vague to be used for the purposes of criminal punishment, it could still be used for deportation.

Justice Neil Gorsuch, the newest member of the U.S. Supreme Court was not impressed with the argument, according to the LA Times. He said:

 “I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn’t trade places in the world for someone who is deported.”

Gorsuch questioned the drawing of a line between criminal punishment and civil penalties like as deportation.

In its editorial, the Los Angeles Times agreed with the Gorsuch. It said if a court decides the wording of the law that triggered Dimaya’s removal order was unconstitutionally vague, the Filipino should be entitled to relief.

A law too vague for a criminal sentence should not be a good pretext to expel someone from the country.

All too often, immigrants have not received fair treatment from the courts. If you are facing deportation, you may have rights. Please call our Austin cancellation of removal lawyers today for a free consultation at (512) 474-4445.

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Supreme Court to Rule if Immigrants Should Have their Detentions Reviewed by a Judge

By Peek & Toland on March 12, 2018

The question of whether immigrants can be held for indefinite periods in detention centers again came before the U.S. Supreme Court in October as the justices looked at whether detentions should be reviewed by a judge.

The Washington Post noted a divide between liberal and conservative judges on the question in the case of Jennings v Rodriguez.

It was the second time the nation’s highest court heard arguments in the case which has been hailed as one of the most important immigration cases to come before the U.S. Supreme Court in recent years. Last term, an evenly divided court lacking one member was deadlocked.

The Washington Post noted the liberal justices on the Supreme Court dominated discussions about the indefinite detention of immigrants facing deportation.

At issue is whether immigrants slated for deportation have a right to a bail hearing and potential release after six months if they do not pose a flight risk or a danger to the public. The hearing could impact thousands of immigrants being held in detention centers as they await possible deportation.

Should immigrants have their detentions reviewed by a judge?

Supreme Court to decide if immigrants should have detentions reviewed by a judge

The conservative justices were skeptical about whether the high court should be setting firm deadlines for hearings in the immigration courts.

The court heard from attorneys in the Justice Department that noncitizens – documented and undocumented – had no constitutional rights in the U.S.A.

A lawyer for the Justice Department told the high court that noncitizens — whether documented or undocumented immigrants — have no constitutional right to be in the United States.

Justice Neil M. Gorsuch who has joined the bench since the last hearing is expected to cast the deciding vote.

Previously, the U.S. Court of Appeals for the 9th Circuit ruled immigrants who are fighting deportation should be given bond hearings if they have been held for over six months.

Justice Sonia Sotomayor mounted a strong case for bond hearings. She said noncitizens are languishing for years in detention centers, a situation she branded as “lawlessness.”

This case remains one of the most important immigration battles currently in the courts. It could have a major impact on the Trump administration’s immigration agenda.

If you or a family member is fighting deportation, please contact our Texas immigration lawyers.

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Judge Refuses to Release Iraq War Veteran Fighting Deportation

By Peek & Toland on March 2, 2018

Iraq war veteran Chong Kim served the United States in the Middle East in 2009 and 2010 but later struggled with post-traumatic stress disorder and homelessness.

Kim is a green card holder but recent criminal convictions mean he is facing deportation.

A recent report on ABC News noted an immigration judge in Washington State declined to release him from custody while he fights the deportation action.

Kim is an immigrant from South Korea and a green card holder from Portland in Oregon.

After his time in Iraq, he faced homelessness, drug addiction, and post-traumatic stress disorder. He wound up with convictions for burglary and other charges.

Kim’s attorney and friends said he has turned around his life. He completed a substance abuse treatment program organized by the Department of Veterans Affairs early this year.

Deportation of Iraq war veteran

Iraq war veteran faces deportation

However, Kim was arrested by immigration agents in April. They brought him to a detention center in Tacoma, Washington. The authorities are seeking to deport him because of his convictions.

Kim joined up with the National Guard in 2005. He served in Iraq in 2009 and 2010 before he was honorably discharged. He has been in the U.S. for more than three decades since he was five-years-old. He became a legal permanent resident in 1981. His friends say he does not speak any Korean.

They took issue with Kim’s immigrant deportation. Matt Luce, 41 attended high school with Kim.

He told the media it was wrong to be deporting an Army veteran. He said:

“Despite his convictions, he was on and continues to be on the right path. This is just a travesty of justice.”

However, in October Immigration Judge Theresa Scala found that the government met its burden to show that Kim posed a public danger or a risk of flight, though she did not explain her rationale in court. He remained in detention. His lawyers plan to appeal the decision.

Kim blames his drug problems on the arrests. He was involved in a burglary and a prank in which he filled a beer bottle with gasoline, set it on fire and threw it at a concrete outer wall behind a hardware store.

Green card holders can face deportation by U.S. Customs and Immigration Enforcement (ICE) if they commit crimes.

At Peek & Toland, we can help you with a cancellation of removal action. See more about green cards here or call us at (512) 474-4445.

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