My Opinion — Page 8

ICE Closure Rate of Immigration Court Removal Cases is Disappointing

June 13, 2012 by Matthew

On April 4, 2012, I blogged about how certain Immigration Judges would be canceling court, so that the Immigration and Customs Enforcement (ICE) could review cases for administrative closure. Last week, the New York Times reported on the results so far of the efforts of ICE to exercise prosecutorial discretion by administratively closing cases. According to the article, 288,361 cases have been reviewed and only 4,403 cases have been administratively closed. That’s a rate of approximately 2%. The fact that such a low rate of cases has been administratively closed has been criticized by many organizations, including the American Immigration Lawyers Association. While this is very disappointing to immigration advocates, it also seems to be a tremendous waste of resources. The point of ICE reviewing files for administrative closure was to clear the Immigration Court’s overburdened docket. I was in in immigration court a few weeks ago and an Immigration Judge scheduled me for a hearing in 2014 because that was the earliest date the Immigration Judge had on her calendar. To shut the system down to review 288,361 cases and only administratively close 4,403 cases does not seem like it was worth the effort.

The article does not discuss deferred actions, but provides statistics about deferred actions. A deferred action is when an alien is subject to a final order of removal and requests not to be deported for humanitarian reasons. In 2010, there were only 486 grants of deferred actions or stays of removal. By comparison, 1,973 deferred actions were granted so far in fiscal year 2012. Unlike the administrative closure statistics, this dramatic increase in deferred actions is something to be optimistic about.

Plight of NY Jet Shows the Importance of Naturalizing

May 16, 2012 by Matthew

Last year, the NY Jets drafted defensive lineman Kenrick Ellis in the third round of the NFL Draft. This was a risky move on the part of the NJ Jets because Kenrick Ellis is facing felony assault charges in Virginia. According to news reports, Kenrick Ellis is not a U.S. Citizen, but a lawful permanent resident or green card holder. If Mr. Ellis is convicted and sentenced to a year or more in prison, he will be classified under the immigration laws as an aggravated felon. As an aggravated felon, he will be subject to removal proceedings and the only relief from removal that he could request would be relief under the Convention Against Torture. He would not be able to ask the Immigration Judge to let him stay based upon hardship to himself or his family. According to news reports, Mr. Ellis has been in the United States since he was eleven years old. Mr. Ellis’ immigration problem could have been avoided, if he had simply applied for naturalization when he was eighteen years old. Sadly, too many people like Mr. Ellis put off applying for naturalization. For most people who put off filing for naturalization, it is not a problem. However, for people who get into trouble with the law, it is a serious problem. The only sure way for a green card holder to protect themselves from deportation is to become a citizen. Most people think: I’ll never get into trouble, so I don’t need to naturalize. However, many times people get into trouble without looking for trouble; it just finds them. This appears to be what happened to Kenrick Ellis. If Kenrick Ellis were a U.S. citizen and he were convicted, he could resume his NFL career after he finishes his prison sentence. However, because Kenrick Ellis is not a U.S. citizen, if he is convicted, he will likely be deported and his NFL career will be over.

Not Everyone Benefits From New Supreme Court Case

March 30, 2012 by Matthew

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.