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.
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.