Monday, March 2, 2015

Immigrant of the Day: Rey Faustino (The Philippines)

Rey Faustino and his family arrived in Los Angeles from the Philippines seeking a better life. As it so often turns out, getting to America was actually the easy part. The Faustinos, now U.S. citizens, were undocumented and spoke little or no English. The family faced a confusing and sometimes overlapping array of social services designed to help immigrants like themselves.

Faustino’s childhood experience and that of other low-income families inspired him to start One Degree, a one-stop website in San Francisco for people to navigate thousands of social service organizations that specialize in everything from health care and job training to education and housing.

For more about Rey Faustino, click here.

KJ

March 2, 2015 in Current Affairs | Permalink | Comments (0)

Missing in Action: Job-Driven Educational Pathways for Youth and Adults

Pew Charitable Trusts’ Immigration and the States Project Call for Proposals

The Pew Charitable TrustsImmigration and the States project has issued a Request for Proposals to engage in research in three areas: 1) the impact of federal immigration laws and policies on states and/or localities; 2) the impact of immigrants admitted by the federal government in the states and/or localities where they settle; and 3) the impact of immigration-related state and/or local laws and policies on states and/or localities.

 

The Immigration and the States project examines the intersection of federal, state, and local immigration laws and policies and their potential impact on all levels of government. Proposals will be accepted to immigration@pewtrusts.org through 5:00 pm EDT on Friday, March 20, 2015. Contracts will be awarded for those proposals Pew chooses to fund. Please see below for the anticipated timeline for proposal review, award, and completion. Individuals and research teams from academic institutions, for-profit organizations, nonprofit organizations, and those without affiliations are eligible to apply.

Download Immigration_RFP_FINAL_All

KJ

March 2, 2015 in Current Affairs | Permalink | Comments (0)

Wisconsin Governor Admits Flip Flop on Immigration Reform

 

Wisconsin Gov. Scott Walker, a presumptive 2016 Republican presidential candidate, told Fox News that he has changed his immigration stance and no longer backs comprehensive reform that would allow illegal immigrants to be penalized but remain in the country. “My view has changed,” Walker said in a “Fox News Sunday” interview. “I’m flat out saying it.”

KJ

March 2, 2015 in Current Affairs | Permalink | Comments (0)

U.S. Seeks to Deport Bosnians Over War Crimes

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Map courtesy of wikipedia

Eric Lichtbleau reports on a removal effort by the U.S. government that is reminiscent of the efforts for decades to remove former Nazi persecutors from the United States

Immigration officials are moving to deport at least 150 Bosnians in the United States who are believed to have taken part in war crimes and “ethnic cleansing” during the conflict in the former Yugoslavia in the 1990s. Officials have identified about 300 immigrants who they believe concealed their involvement in wartime atrocities when they came to the United States as part of a wave of Bosnian war refugees fleeing the violence there. The officials said the number of suspects could eventually top 600. “The more we dig, the more documents we find,” said Michael MacQueen, an Immigration and Customs Enforcement historian who has led many investigations in the agency’s war crimes section. The accused immigrants, many of them former soldiers from Bosnia, include a soccer coach in Virginia, a metal worker in Ohio and four hotel casino workers in Las Vegas.

KJ

March 2, 2015 in Current Affairs | Permalink | Comments (0)

Families Separated By Coercive Immigration Practices May Be Reunited in U.S.

Hundreds, if not thousands, of noncitizens who signed “voluntary return” forms in Southern California and were expelled to Mexico will be given the opportunity to apply to return to the United States and seek legal status, a United States district court ordered late last week.  For details, see this ACLU press release and here.

Judge John A. Kronstadt approved a settlement that addresses deceptive tactics used by immigration enforcement officers who deprived those who signed the “voluntary return” documents their right to see a judge and have their fair day in court.

In June 2013, the ACLU Foundation of San Diego & Imperial Counties, the ACLU Foundation of Southern California, the ACLU Immigrants’ Rights Project, and Cooley LLP filed the lawsuit, Lopez-Venegas v. Johnson, on behalf of individual plaintiffs who were wrongfully expelled from the United States and organizations that were forced to divert their scarce resources in response to these unlawful practices. The individual plaintiffs had no significant criminal backgrounds, and their family ties could have helped them obtain relief against deportation had Border Patrol agents or ICE officers not misstated the consequences of signing away their right to see an immigration judge. Under the terms of the settlement, nine plaintiffs returned to the United States and their loved ones in August 2014, with the same legal status they had before signing the documents.

Now that Judge Kronstadt has approved the class provisions of the settlement, the ACLU and the three organizational plaintiffs, the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), the Pomona Economic Opportunity Center, and the San Bernardino Community Service Center, will be leading the search for potential class members in Mexico.

To qualify as a class member under the Lopez-Venegas “voluntary return” settlement an individual must: Have signed a “voluntary return” form between June 1, 2009 and August 28, 2014 and been expelled to Mexico; Have had certain reasonable claims to reside in the U.S. lawfully at the time the “voluntary return” form was signed; Have been processed by Border Patrol officers from the San Diego Sector or by Immigration and Customs Enforcement (ICE) officers from the San Diego or Los Angeles field offices; and Be physically present in Mexico at the time of submission of application for class membership. Potential class members should be wary of notario fraud. Only the ACLU and ACLU-approved service providers will be able to submit applications for approval to the government for relief under this settlement. The application for relief under this settlement is free, as are consultations related to determining class eligibility.

Potential class members and their families should write to avd@aclusandiego.org or call 619-398-4189 within the United States or, from Mexico, use toll-free number 01-800-681-6917 to schedule an initial consultation.

KJ

March 2, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? by Audrey Macklin and Rainer Baubock

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The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? by Audrey Macklin, University of Toronto - Faculty of Law, and  Rainer Baubock, European University Institute, February 2015 Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/14

Abstract: In this EUDO CITIZENSHIP Forum Debate, several authors discuss the growing trend in Europe and North America of using denationalisation of citizens as a counter-terrorism strategy. The deprivation of citizenship status, alongside passport revocation, and denial of re-admission to citizens returning from abroad, manifest the securitisation of citizenship. Britain leads in citizenship deprivation, but in 2014, Canada passed new citizenship-stripping legislation and France’s Conseil Constitutionnel recently upheld denaturalisation of dual citizens convicted of terrorism-related offences. In the wake of the ongoing crisis in Iraq and Syria, assorted legislators in Austria, Australia, the Netherlands, and the United States have expressed interest in enacting (or reviving) similar legislation. The contributors to the Forum Debate consider the normative justification for citizenship deprivation from a variety of disciplinary perspectives. There is relatively little disagreement among commentators about the limited instrumental value of citizenship revocation in enhancing national security, and more diversity in viewpoint about its significance for citizenship itself. The contributors discuss the characterisation of citizenship as right versus privilege, the relevance of statelessness and dual nationality, the relative merits of citizenship versus human rights as normative framework, and the expansiveness of banishment itself as a concept.

KJ

March 2, 2015 in Current Affairs | Permalink | Comments (0)

Sunday, March 1, 2015

The Immigration Backlash

The New Yorker has an interesting podcast with a political and legal analysis of immigration reform, the use of executive power, and the Texas v. United States litigation.  Ryan Lizza, Jeffrey Toobin, and DorothyWickenden on this week’s Political Scene podcast talk about Obama’s new approach to executive power in the face of a hostile Congress, the negotiations to avoid a Homeland Security shutdown, and the use of the Administrative Procedures Act to halt the President’s executive action on immigration.

KJ

March 1, 2015 in Current Affairs | Permalink | Comments (0)

Anti-Immigration Rally of Northern League Draws Thousands in Rome

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As previously reported on the ImmigrationProf blog, immigration tensions continue to arise in Europe.  The BBC reports that thousands of supporters of Italy's Northern League on Saturday held a rally against immigration in one of Rome's biggest squares. League leader Matteo Salvini accused Mr Renzi of substituting the country's interests to those of the European Union.

Lega Nord is a regionalist political party in Italy. The party is often referred to as Northern League by English-language media.  The party takes a tough stance on crime, illegal immigration, especially from Muslim countries, and terrorism. It supports the promotion of immigration from non-Muslim countries in order to protect the "Christian identity" of Italy and Europe, which, according to party officials, should be based on "Judeo-Christian heritage." Because of this, the party has been labeled as "xenophobic" and "anti-immigrant."

KJ

March 1, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Immigration as Business Strategy: Simplifying American Immigration Law in a Global Economy by Peter J. Choi

Immigration as Business Strategy: Simplifying American Immigration Law in a Global Economy by Peter J. Choi, 2014 University of Massachusetts Law Review, Vol. 10, p. 164, 2014

Abstract: Despite immigration law’s notorious complexity, public debate on immigration reform has historically ignored basic questions of why and how the current laws should be simplified. Instead, discussion has often focused on substantive proposals — most commonly regarding legalization and border enforcement — without reference to the impact of these proposals on the legal immigration structure. This article emphasizes that any durable immigration reform must take steps to free the immigration system from the intricacies that define it today. The article begins by overviewing the basic features of the modern global economy, their implications for immigration law, and why these implications compel an immigration system based on simple rules. Then, borrowing from the literature on business strategy and organizational design, the article applies to the current immigration system a basic three-step framework for developing simple rules.

In the first step — Setting the Objective —the article argues that family reunification, the primary objective of the current system, does not adequately acknowledge the global economy in which the American immigration system operates. As economic conditions affecting the United States have evolved since fifty years ago when family reunification emerged as the cornerstone of American immigration policy, the focus of the American immigration system must be reoriented towards competing in the global economy. In the second step — Identifying a Bottleneck — the article hones in on the second and third categories of the current five-category preference system for admitting employment-based immigrants. Examining the unique obstacles and complexities facing immigration under the EB-2 and EB-3 categories, the article identifies these categories as a focal point on which any effort to simplify American immigration law should take aim at the outset. Finally, in the third step — Formulating the Rules — the article argues that a provisional visa program offers a legal system that is user-created, repetitively applicable, and easily adaptable — features that are necessary for the effective practical application of simple rules. As such, provisional visas provide a structurally viable replacement for the procedures currently used to admit immigrants who fall under the EB-2 and EB-3 categories.

The overarching purpose of this article is to emphasize that sustainable reform of American immigration law must not only make substantive revisions, but also initiate a process of structural simplification. The article offers a conceptual starting point for this process by applying to the current immigration system a basic business-strategy framework for developing simple rules.

KJ

March 1, 2015 in Current Affairs | Permalink | Comments (0)

Saturday, February 28, 2015

Legomsky Testifies Before the Judiciary Committee

Congress Extends DHS Funding for a Week Until March 6

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Playing a dangerous game of brinksmanship, Congress as the midnight deadline approached finally acted to delay the closing of the Department of Homeland Security. As CNN reports, the House approved a one-week extension of funding for the Department of Homeland Security, avoiding a partial shutdown just hours before a Friday night deadline. President Obama signed the bill, which funds the Department of Homeland Security until March 6.

Earlier in the day, the House had rejected a 20 day extension of DHS funding that had the support of the House leadership, including Speaker John Boehner (R-Ohio).

KJ

February 28, 2015 in Current Affairs | Permalink | Comments (0)

Central America: Information on Migration of Unaccompanied Children from El Salvador, Guatemala, and Honduras

International

A February 2015 U.S. Government Accountability Office report ("Central America: Information on Migration of Unaccompanied Children from El Salvador, Guatemala, and Honduras") looks at recent flows of migration from Central America and concludes that

"Department of State (State), U.S. Agency for International Development (USAID), and Department of Homeland Security (DHS) officials stationed in El Salvador, Guatemala, and Honduras most commonly identified crime and violence and economic concerns as causes primarily responsible for the recent rapid increase in migration to the United States by unaccompanied alien children (UAC). These causes were followed by educational concerns, the desire for family reunification, and the role of smuggling networks, among others. . . . The officials reported that agencies had developed new programs and modified existing programs to address the rapid increase in UAC migration in each of the three countries. They noted that most of these programs are specifically targeted to address identified causes of migration, such as crime and violence, lack of economic opportunities, and criminal networks that smuggle unaccompanied children. For example, DHS officials reported that the department had implemented Operation Coyote, an initiative active in all three countries to combat criminal organizations involved in UAC smuggling. According to agency officials, new and modified programs ranged in location from specific communities or cities to border areas to nation-wide or region-wide initiatives. State and USAID officials also noted that some of their efforts and strategic objectives that had been in place prior to the rapid increase in UAC migration focused on related issues such as economic development and crime reduction. Officials reported that they have undertaken various efforts to plan their responses to the increase in migration, including coordinating among U.S. agencies and with host governments. For example, agency officials from all three countries reported participating in UAC interagency working groups at each embassy. In addition, State and USAID officials said they have used DHS data on the location of origins of UAC to inform their efforts."

KJ

February 28, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Removing the Distraction of Delay by Jill E. Family

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Removing the Distraction of Delay by Jill Family, Widener University - School of Law February 18, 2015 Catholic University Law Review, Vol. 64, No. 99, 2014 Widener Law School Legal Studies Research Paper No. 15-04

Abstract: Immigration adjudication is in an awkward position. There is an intricate system to adjudicate immigration removal (deportation) cases, but that system is hindered by restrictions, and the threat of further restrictions, that reflect distaste for providing process to foreign nationals facing removal. There is a push and pull phenomenon, with immigration adjudication stretched uncomfortably in between two forces. On the one side, there is a push to apply concepts of procedural justice in immigration cases as in any other context. On the other side, there is a pull away from those common conceptions and a belief that less process is not only acceptable, but also preferable. One often stated justification for cutting back on access to justice in the immigration removal context is that providing access to justice gives foreign nationals means to delay removal. This stated concern about delay places the blame on individual foreign nationals, and their attorneys, for accessing justice. It promotes the idea that foreign nationals seek review for less than honorable reasons, and that therefore court access must be curtailed. This Article argues that the delay rationale is window dressing for a much deeper disagreement about the role of individual rights in immigration law. The delay rationale rests upon, and promotes, a conception of national sovereignty that places the will of the national government above all else in the context of immigration law. Once the disagreement about individual rights is revealed, this Article asserts, there is a need to eliminate the delay distraction. The debate should be held along the terms of the role of individual rights in immigration law, rather than placing the blame on foreign nationals and their attorneys for seeking access to justice. The debate about the role of individual rights is essential, but the experience of the United Kingdom shows that formal legal resolution of the question is not enough to ease immigration adjudication from its awkward position. The experience of the United Kingdom reveals that it is also necessary to change public perception of what government power should be in immigration law. The United Kingdom has incorporated into its domestic law international obligations that recognize a more modern notion of sovereignty that respects the individual. In the United Kingdom, however, there is still a fierce battle about immigration adjudication. Arguments about delay are still raised to promote limits on process. The lack of a cultural progression, despite formal legal acknowledgement, has left immigration adjudication in the United Kingdom still subject to efforts to restrict access to justice. The lesson for the United States is that a cultural shift must accompany any formal legal resolution.

KJ

February 28, 2015 in Current Affairs | Permalink | Comments (0)

Friday, February 27, 2015

A View from Texas' Death Valley

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Texas’ Death Valley   

Matthew Campanella, a graduate of Loyola Marymount University, says he wanted to help make a documentary about the conditions faced by immigrants in Texas because of what he learned about being “a man for others” as a member of a service organization.  He walked the migrant trail across the U>S./Mexico border in Texas, where people die daily.

KJ

February 27, 2015 in Current Affairs, Film & Television | Permalink | Comments (0)

The Next Great Migration? African Americans Leaving the United States

Thomas Chatterton Williams in "The Next Great Migration" studies the interesting possibility that, in light of, among other things, the treatment of African Americans by law enforcement in cities across the United States, Blacks should consider migrating to other countries where they will be better treated.  Put differently, should African Americans vote with their feet -- like many other immigrant groups do?

KJ

February 27, 2015 in Current Affairs | Permalink | Comments (0)

The Political Assimilation of Immigrants and Their Descendants

Sam Wilson and Alex Nowrasteh of the Cato Institute, a free market-oriented advocacy group, conclude that, despite consistent claims to the contrary by those who seek to restrict immigration, immigrants in fact assimilate into the mainstream fabric of the United States.  And they are not all politically to the left (thus making it hard to accept the claim of some Republicans that immigration is used by Democrats to gain long-term political advantage, i.e., votes.).

Many skeptics of immigration reform claim that immigrants and their descendants will not politically assimilate and will consistently vote for bigger government for generations. Political survey data suggest that this fear is unwarranted, as the political differences between immigrants and native-born Americans are small and, in most cases, so small that they are statistically insignificant. In the cases where the differences are significant, the descendants of immigrants rapidly assimilate into America’s political culture by adopting mainstream ideologies, political party identifications, and policy positions held by longer-settled Americans. The policy and political views of immigrants and their descendants are mostly indistinguishable from Americans whose families have been here for at least four generations. As a result of these small differences in opinion and the subsequent rapid assimilation of immigrants, they and their descendants are unlikely to alter America’s aggregate political attitudes.

KJ

February 27, 2015 in Current Affairs | Permalink | Comments (0)

Johann Morri: Judicial Review of Administrative Visa Denials in France

ImmigrationProf and other blogs have analyzed in depth  the issues before the U.S. Supreme Court in Kerry v. Din, which was argued before the Court last Monday with the Office of the Solicitor General vigorously defending the doctrine of consular nonreviewability as an absolute bar to judicial review of consular officer visa decisions.  Johann Morri, an administrative law judge in France who earned a L.LM. degree in the United States,  discusses how judicial review of such decisions is possible in France and a change in the law in 1986 has not had major adverse consequences (namely, there has not been much litigation over visa denials) .

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In France, the doctrine of consular non-reviewability of the visa denials by consular officers was given up in 1986 (Conseil d’Etat,  Feb. 28, 1986, Ngako Jeuga, Leb. p. 49).

Visa denials can currently be appealed and reviewed according to the following procedural steps.

First, the visa applicant must submit a claim before a specialized administrative board of appeals, the CRRV (Commission de recours contre les refus de visa). The board of appeals (CRRV) finds for the agency in more than 90% of cases (and its decisions are not binding on the ministry). For this reason, the CRRV has been heavily criticized by immigration advocacy groups, who mainly view it as a waste of time and a useless step on the road to judicial review.

If the board upholds the visa denial, doesn’t answer the claim within two months, or if the Ministry of Foreign Affairs (the equivalent of the State Department) maintains its visa denial despite the advice of the board, the applicant (or its spouse or relative) can seek judicial review of the denial.

The judicial review of the denial takes place before the administrative tribunal of Nantes (NB: although the name of the court is “tribunal administratif”, it’s the equivalent of an article III court in the USA, since the court is totally independent from the government and its decisions are binding on the agency). Plaintiffs do not need to be represented by an attorney.

The standard of review and the amount of deference to the agency’s decision vary depending on the type of visa and of the nature of the right asserted by the plaintiff (generally, the standard of review is high when it comes to family reunification/spouses visas ; it’s more deferential when family life is not at stake). The decision of the “tribunal administratif” may be appealed before the Conseil d’Etat (French highest public law court). (Nota : Before 2010 the visa denial could be challenged directly before the Conseil d’Etat, because no other court had territorial jurisdiction to hear those cases, since the decisions were taken outside of the metropolitan French territory. The Conseil advocated – successfully -- for the instauration of a more traditional two-tiered system of court review, and the litigation was transferred to the Administrative court of Nantes).

Upon showing of a particular emergency and of a “serious doubt” regarding the validity of the consular denial (the “refere” procedure), the applicant may also apply for a stay of the visa denial –which, in practice, often puts an end to the litigation, since the applicant is allowed to travel to France.

According to the official statistics published by the French government (official immigration report of the government to the congress, published every year : Les etrangers en France. Dixieme rapport au Parlement en application de l’article L. 111-10 du code de l’entrée et du sejour des etrangers – 2012 edition, p. 37, 4 and 49), the number of denials actually litigated before the courts is limited :

 

 

2007

2008

2009

2010

2011

2012

Visa applications

2.350 millions

2.336 millions

2.1 millions

2.24 millions

2.43 millions

2.6 millions

Visa denials

240 235

224 991

224 053

217 331

221 147

247 255

Rate of denial

10.40%

9.80%

10.80%

9.80%

9.30%

9.60%

Appeals to the CRRV

3867

4328

691

5269

13369

17663

Claims filed before the courts

500

897

1154

1909

2431

2173

Percentage of visa denials cancelled by the courts

13%

15%

12%

22%

21%

20%

Percentage of moot cases (the visa is delivered before the court’s decision)

24%

39%

44%

31%

27%

19%

 Even if, in absolute numbers, the amount of cases brought to court every year is important (more than two thousand in 2012, the last year with official data available), the percentage of visa denials actually litigated before the courts is very low. The litigation rate has increased over the years, but remains low (about 2100 court cases for about 2,6 millions visa denials in 2012 : less than one per a thousand).

February 27, 2015 in Current Affairs | Permalink | Comments (0)

Laura Murrray-Tjan Shows Us, Yet Again, that Immigration Law is Hard


Laura Murray-Tjan

Immprof Laura Murray-Tjan's latest post for HuffPo is: Whoops! The Department of Justice Admits That It Misunderstood U.S. Citizenship Law.

In her piece, Murray-Tjan covers the DOJ's Feb 12, 2015 decision in which the government admits that it had been misreading the legal requirements for legitimation (relevant to derivative citizenship for out-of-wedlock children of USC dads) since 2008.

If you haven't yet read Murray-Tjan's prior post on the 9th Circuit's confusion between COR Part A and COR Part B - you really should. I use that one in class to show that confusion about immigration law isn't just a student issue.

Murray-Tjan's posts remind me of the quote by appellate lawyer John Elwood: “It’s well known that prolonged exposure to the hyper-reticulated Immigration and Nationality Act can actually cause your brain to melt.”

Keep an eye out for future posts by Murray-Tjan. We need someone on the lookout for brainmelt as it happens.

-KitJ

February 27, 2015 in Current Affairs | Permalink | Comments (0)

Timothy Dugdale: The Constitution and Noncitizens in Two District Court Decisions

Two interesting cases have been decided in the past week at the district court level. In one, L.I. L-R v. Johnson (DC District), James Boasberg takes ICE to task for using detention as a warning advertisement to Central America that there is no open door to the United States. Particularly vexing for Boasberg was the fact that some woman were being detained even after they had successful "credible fear" interviews that removed them from the dreaded Immigration and Nationality Act (INA) § 235 track of expedited removal and shunted them on the golden INA § 240 rails that pass in front of an immigration judge (IJ), the Board of Immigration Appeals (BIA) and perhaps even a court of appeals. Boasberg begins his ruling by discussing the notorious 2014 Department of Homeland Security (DHS) memorandum that set up the detention strategy he found so failing. One would think that if the DHS is tinkering with the expedited removal system, that system would be open to judicial review regardless of AILA v. Reno (DC Circuit 1999).

The second case, Maca v. U.S. Attorney, illuminates why the expedited removal statute as it's written is pretty diabolical. Mr. Maca lived continuously, albeit illegally, in the United States for 16 years. He made a trip to Mexico and tried to get back into the country using a fraudulent identification. He was rewarded with an expedited removal. Unfazed, he quickly snuck back into the States and resumed his life with four US citizen children. Years later, he was found out when he went to inquire about securing a work permit. Maca filed a writ of mandamus demanding that DHS adjudicate a cancellation of removal petition. He contended he met all the requirements for such relief.

The judge was unconvinced. "…the placement of the cancellation provisions within § 1229 suggests that Congress likely intended to make cancellation relief available only to those aliens receiving the full procedural protections of a formal removal proceeding, while aliens subject to expedited removal receive only those protections afforded them in § 1225—which severely restricts procedural safeguards and limits the judicial review of expedited removal determinations."

It should be noted that any alien apprehended inside the US who can prove he or she has been continuously present for two years receives an INA §§ 240/1229 proceeding. At the border, Maca was assimilated as an "arriving alien" and he had no game on any of the three prongs found at INA §§ 1252(e)(2)(A-C). 1252(e)(5) bars judicial inquiry into whether he was eligible for relief although in Kabenga v. Holder (SD New York 2015), the judge stomped all over Section 1252(e)(5) so she could determine if the petitioner was in fact admissible. Judge Gordon delves deeper into the Kafka-esque dilemma.

8 C.F.R. § 1240.20(a) provides that an application for cancellation of removal shall be submitted on Form EOIR-42, "Application for Cancellation of Removal." Because Maca would apply for cancellation as a nonpermanent resident, the form he must use is Form EOIR-42B.40 The form provides that an applicant is eligible for cancellation only if "[p]rior to the service of the Notice to Appear, [he has] maintained continuous physical presence in the United States for ten (10) years or more."41 A Notice to Appear is filed in order to commence formal removal proceedings before an IJ.42 An alien subject to expedited removal never receives a Notice to Appear. As a result, an alien subject to expedited removal would never qualify for cancellation based on the application form required by the Secretary of Homeland Security's regulations because he could never calculate the period of his physical presence in the United States with reference to the date of service of his Notice to Appear.

If Boumediene and the functional approach to alien rights articulated by Justice Kennedy are now the supreme control over habeas, including the immigration context, this case illustrates why the expedited system is unconstitutional. Maca did not get the due process he was due because the system as it's cravenly built won't let him get it.

"Without any right to cancellation, Maca cannot make a showing as to any of the standing elements, including injury, causation, or redressibility.43 Accordingly, he has failed to establish that he has standing to bring claims premised on defendants' alleged failure to adjudicate his application for cancellation."

Timothy Dugdale, Ph.D., Atomic Quill Media

February 27, 2015 in Current Affairs | Permalink | Comments (0)