One of my clients that was subject to mandatory detention by the Immigration and Customs Enforcement (“ICE”) was released today for humanitarian reasons due to her medical problems. Under INA § 236(c), aliens that are convicted of certain criminal offenses are not eligible for bond during their deportation proceedings. This is referred to as mandatory detention. Usually, someone who is subject to mandatory detention is detained pending the outcome of their deportation proceedings. However, in this case, I was able to obtain my client’s release due to her serious health issues. If she had not been released, she would have spent months in detention until her deportation proceedings were over.
Archives for March 2012
On March 28, 2012, the U.S. Supreme Court decided Vartelas v. Holder. Mr. Vartelas was convicted of a counterfeit offense in 1994. In 2004, he traveled abroad and was placed in removal proceedings upon his return to the United States. Prior to 1997, the law provided that if he had traveled abroad, he would have been allowed to return to the United States. However, under changes in the immigration laws that occurred in 1997, he was classified as an “arriving alien.” The first two immigration attorneys that he hired conceded that he was subject to inadmissibility. His third immigration lawyer argued that since the immigration law at the time of his plea agreement permitted him to travel, the 1997 law should not be applied to him. The Supreme Court agreed finding that the 1997 law was impermissibly retroactive to Mr. Vartelas. Thus, Mr. Vartelas can no longer be classified as an arriving alien.
I am a little concerned that people may hear about the Vartelas decision and mistakenly believe that it is safe for all residents with criminal history to travel. This is not correct. Not everyone will benefit from the new Supreme Court case. Mr. Vartelas’ case involves very special circumstances. Mr. Vartelas had a very old conviction from 1994. The Supreme Court’s decision only applies to convictions before April 1, 1997. For anyone who has a conviction after April 1, 1997, if they travel, they risk being classified as an arriving alien and placed in removal proceedings.
Even though he won his case, it took approximately eight years of litigation for him to do so. Mr. Vartelas’ case demonstrates the importance of lawful permanent residents with criminal convictions consulting with immigration lawyers before traveling outside of the United States. The Supreme Court’s decision does not address this, but green card holders classified as arriving aliens can be detained indefinitely without a bond hearing pending the outcome of their removal proceedings. Mr. Vartelas was very fortunate that the Immigration Customs Enforcement had decided not to detain him.
Mr. Vartelas’ case also demonstrates the importance of finding a good immigration lawyer. His first two immigration attorneys conceded that he was an arriving alien. If he had not found a new immigration attorney, he would have been deported.
On March 27, 2012, the Second Circuit decided Huang v. Holder, Dkt. No. 10-1263 (2d Cir.). It is a precedent decision. I co-wrote with Joe Hohenstein, Madeline Garcia and Annette Marie Wietecha an amicus curiae brief for the American Immigration Lawyers Association (“AILA”) in support of the petitioner. I am on the AILA Amicus Committee that submits amicus curiae briefs for AILA. The decision overturns portions of the Board of Immigration Appeals’ precedent decision in Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (B.I.A. 2010).
In Matter of H-L-H-, the Immigration Judge granted an alien asylum. In doing so, the Immigration Judge found that the alien had a future fear of harm. The Immigration Customs Enforcement appealed and the Board overturned the immigration judge. Under the Board’s regulations, when reviewing an immigration judge’s factual findings, the Board can only overturn the factual findings, if they are “clearly erroneous.” When reviewing an immigration judge’s legal determination, the Board may utilize “de novo review,” which means that the Board provides new review of the issue without consideration of the immigration judge’s decision. The Board found that the immigration judge’s finding that the alien would be harmed in his country was part of a question of law, so that it was subject to de novo review.
The Second Circuit held that the determination that the alien would be harmed in the future was fact finding that could only be overturned, if it was clearly erroneous. This decision is important because it prevents the Board from overturning findings of immigration judges that asylum seekers will be harmed in the future, unless there is an actual error in the decision. Previously, the Board took away the grant of asylum without finding any actual error in the immigration judge’s decision.