Making False Statement on Immigration Application is Deportable Aggravated Felony

11th Circuit Court of Appeals Concludes That Petitioner’s Federal Conviction for Making False Statements in an Immigration Application Was an Aggravated Felony

The court denied the petition for review, holding that because the petitioner was convicted of making false statements in an immigration application in violation of 18 USC §1546(a) and his sentence was for greater than one year, his conviction expressly fell within the definition of an aggravated felony in INA §101(a)(43)(P).

Accordingly, the court found that the BIA properly dismissed the petitioner’s appeal, because the IJ correctly denied his motion to terminate his removal proceedings and his application for cancellation of removal on the ground that his §1546(a) convictions were aggravated felonies. (Germain v. Att’y Gen., 8/18/21)

Click link to view case: Germain v. Att’y Gen., 8/18/21

No More Interpreters in Immigration Court

According to news reports, the policy of no more interpreters in immigration court was officially announced to judges on Thursday. The policy is set to begin nationwide on the week of July 15, 2019. However, it has not been publicly confirmed by the Executive Office for Immigration Review, the agency which oversees the immigration courts.

All immigrants in removal proceedings have a right to interpretation, but how that interpretation is carried out varies from place to place. In most locations, interpreters sit next to immigrants when they appear in front of a judge, translating from the immigrants’ language to English and vice versa. 

Under the new policy, interpreters in immigration court will not be available for initial hearings or master hearings. Instead, immigrants who don’t speak English will watch a video orientation in “multiple languages,” and will not be permitted to ask questions about the video. Once the immigrant appears in front of the judge, they will only be able to receive interpretation through the phone.

Telephonic interpretation is often of lower quality than in-person interpretation. Telephonic interpreters have to wait longer to determine whether someone has finished talking, slowing proceedings down. Since they can’t see people, they can’t consider facial expressions or body language in their interpretation. Low-quality telephone lines and volume problems may prevent them from understanding everything that was said.

Before the policy rolled out, immigration judges expressed significant reservations. In leaked emails revealed by BuzzFeed, judges attacked the policy as misguided, with one judge suggesting that playing a video means he will be sitting in court “twiddling my thumbs while the message plays.” Another judge said that the “entire premise of this plan is wrongheaded,” and indicated that it is “disruptive to my court and definitely will not be a time saver.”

About the Author: Aaron Reichlin-Melnick is a Policy Analyst at the American Immigration Council, where he works primarily on immigration court issues and the intersection of immigration law and policy.

Immigration Court system “on the brink of collapse.”

American Bar Association (ABA) calls on Congress to make sweeping changes in order to fix the immigration court system “on the brink of collapse.” – currently face backlogs of over 855,000 cases. In 2018, former Attorney General Sessions stripped judges of their ability to administratively close cases, restricted asylum for victims of domestic violence, and limited judges’ ability to dismiss cases.

ABA’s solution to this problem would be make the immigration court an “Article I” court, similar to federal tax court or bankruptcy courts. Under this new system, the Attorney General would have no authority to directly overrule judges or set precedent, and judges could not be disciplined for failing to meet case completion quotas. The lack of independence in the immigration court system is so dire that the ABA is making an unprecedented call for the government to suspend the hiring of all new immigration judges until the immigration court have been made more independent.


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Immigration Judge Limited in Granting Motion for Continuance

Attorney General’s decision in Matter of L-A-B-R-, limits the discretion of the immigration judges to grant motion for continuance.  In Matter of L-A-B-R- et al.,  27 I&N Dec. 245 (A.G. 2018), the Attorney General referred the decisions of the Board of Immigration Appeals to himself for review.  An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017).  Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?”

What is a motion for continuance? A continuance or adjournment is a docket-management tool that an Immigration Judge (IJ) may utilize to move an upcoming hearing from one scheduled date to another or to pause an ongoing hearing and move it to a future date.  Basically a continuance is a postponement or rescheduling of a hearing date to a future date.

When should you ask for a continuance? Motion for Continuance may be requested in a variety of circumstances, including, but not limited to, the following:

1. To request time for the respondent to acquire an attorney;

2. To request time for attorney preparation or evidence-gathering;

3. When a medical problem or other emergency prevents either the respondent or the attorney from appearing at a hearing;

4. When either the attorney or the respondent has an unexpected conflict with a hearing;

5. When the respondent is awaiting adjudication of a form of relief outside of immigration court, such as an I-130 Petition for Alien Relative or any USCIS-adjudicated application;

6. When the respondent is not competent to proceed;

7. To pursue a family court order when seeking Special Immigrant Juvenile Status;

8. To await the outcome of a pending direct appeal of a criminal conviction;

9. To await the outcome of pending post-conviction relief; or

10. To give DHS the opportunity to correct a defective or incomplete Notice to Appear (“NTA”) and to permit the respondent an opportunity to respond to the new charges.

As with all continuances, the party requesting the continuance—in these examples, the respondent—bears the burden of proof to show good cause for the continuance.

What is the difference between a motion for continuance and motion for administrative closure? Administrative closure (more…)

Administratively Close Immigration Court Cases May Soon be Reopened

Symbol of law and justice in the empty courtroom, law and justice concept, blue tone

In a case (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018)) he had previously referred to himself for review, the attorney general held that Immigration Judges and the Board of Immigration Appeals have no general authority to administratively close immigration court cases. Accordingly, Immigration Judges and the Board of Immigration Appeal may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action. Where a case has been administratively closed without such authority, the IJ or the BIA shall recalendar the case on the motion of either party.

Attorney General Jeff Sessions writes, “I hold that immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. (more…)

Notice to Appear with no time and place for Removal Proceedings is Invalid

“Symbol of law and justice in the empty courtroom, law and justice concept.”

In its June 21, 2018, decision, the Supreme Court reversed the First Circuit Court of Appeals. Justice Sotomayor, writing for the 8-Justice majority, began her opinion by stating what the majority viewed as the narrow question in the case and the simple answer:

If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a “notice to appear” and therefore does not trigger the stop-time rule.

The Supreme Court stated that the cancellation of removal stop-time rule provides that “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear. The Court concluded: “Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.”

The Supreme Court observed that “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.”  The Supreme Court stated: “By allowing for a ‘change or postponement’ of the proceedings to a ‘new time or place,’ presumes that the government has already served a ‘notice to appear’ that would need to be amended with the new time or place of the proceedings.

Finally, the Court stated that common sense supported its ruling. The Court stated: “If the three words ‘notice to appear’ mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens ‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that would enable them ‘to appear’ at the removal hearing in the first place.”

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Immigration Judges New Performance Matrix will create Speedier Deportations

The Department of Justice will be implementing a new performance metrics for immigration judges on October 1, 2018.  The Justice Department official said the new metrics will require immigration judges to complete three cases per workday.  The average cases completed per year by immigration judges, per the official, is fewer than 680. The new metric will require judges to complete 700 cases per year. Completing fewer than 560 cases per year would result in the judge being evaluated at the “unsatisfactory” level.  Many worry that immigration judges will be forced to adjudicate cases more quickly, rush immigrant defendants through the system without the opportunity to obtain an immigration attorney, without an opportunity to present evidence or to present their claim in a manner that’s appropriate with due process.

The requirement to complete a removal/deportation in cases in 3 days from the hearing where the immigrant is detained (10 days when the immigrant is not detained) is nearly impossible for an immigration attorney.  The immigrant defendant and attorney cannot gather evidence to support a claim for relief and file documents in court in 3 days or even 10 days.  Usually when an immigrant is detained, an immigration judge can complete the case in 30 days – giving the government attorney and immigrant defendant reasonable time to gather evidence and present oral testimony.  These new performance metrics for immigration judges is putting a place a new system that will generate more appeals and strip defendants of a fair opportunity to fully prepare and present this case in court (a right referred to a due process). (more…)

Immigration Court Backlog Tops 650,000

“During the first two months of FY 2018 (October-November 2017), the Immigration Court number of pending cases climbed by an additional 30,000. According to the latest case-by-case court records, the backlog at the end of November 2017 had reached 658,728, up from 629,051 at the end of September 2017. Despite the hiring of many additional immigration judges, there has been no apparent slackening in the growth of this backlog. The rate of growth during the first two months of FY 2018 was in fact greater than the pace of growth during FY 2017.

California leads the country with the largest Immigration Court backlog of 123,217 cases. Texas is second with 103,384 pending cases as of the end of November 2017, followed by New York with 89,489 cases. (more…)

Immigration Courts 500,000 Cases Pending

The New Yorker reports that U.S. immigration courts are facing a backlog of over half a million cases—and each one, on average, takes almost two years to close. Roughly three hundred judges nationwide are responsible for the entire immigration caseload, and hiring is slow—filling a vacancy typically takes about two years, according to the Government Accountability Office. Attorney General Jeff Sessions said that he would try to streamline the hiring process, but in the meantime, judges are being shifted around the country due to the backlog.

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Immigration Cases Administratively Closed being placed back on Court Docket

Immigration and Custom Enforcement (ICE) has confirmed it is now re-calendaring or placing back on court docket immigration cases that were previously administratively closed in an exercise of prosecutorial discretion (PD), including cases where there is an arrest or conviction subsequent to the administrative closure. ICE also said that if there was an arrest or conviction prior to administrative closure, that should not trigger a motion to recalendar, nor are they seeking to recalendar all of the cases that were administratively closed for prosecutorial discretion.  However, in some jurisdictions, local ICE offices are seeking to recalendar prosecutorial discretion cases where there was no intervening arrest or conviction.

When is Prosecutorial Discretion Used in Immigration Enforcement? 

Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.

Who Exercises Prosecutorial Discretion? 

ICE, USCIS, and CBP officers have the authority to exercise prosecutorial discretion. (more…)