Articles Posted in Case Law Updates

Over the last two months the Board of Immigration Appeals has released a handful of new published decisions. I have summarized them and provided my insight into what the cases mean for the immigration practitioner. Also, since my last post on the case of Maxi Sopo there has been a very interesting interpretation of the ruling. In my blog on that case https://www.floridaimmigrationlawyerblog.com/2016/06/eleventh_circuit_court_of_appe_1.html, I interpreted the decision to require that immigration attorneys who wished to have a bond hearing when their clients were detained for more than six months pre-final order, would have to go to federal court with a habeas action first. However, that is not how the ACLU interpreted the case and not how it is playing out in court. The ACLU practice advisory says that immigration attorneys who believe their clients have been detained unreasonably long, pre-final order, can file their bond motions directly with the immigration courts. https://www.aclu.org/legal-document/practice-advisory-prolonged-mandatory-detention-and-bond-eligibility-eleventh-circuit. That is a huge time and cost saver for clients. The ramifications of the Sopo case are still shaking out in practice, so I will try and keep you posted on what happens in the filed going forward.

Now, back to the summaries of the published BIA cases for the last few months:

Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016):

As a non-citizen in an immigration detention facility, you may or may not be eligible for release or a bond. Unlike in criminal court where you have a Constitutional right to a reasonable bond (with very few exceptions), in Immigration Court, an immigration judge often has no authority to grant you a bond in your case, even if you have never been arrested for a crime.

In our office, we handle many cases involving clients who are detained in immigration detention facilities. Some are in removal proceedings fighting to keep their green cards, obtain some form of immigration relief or are simply trying to get a bond so they can get out of detention. There are many ways that we can help a client get out of immigration detention, whether its by asking ICE to parole them from custody or grant them a bond, or filing a bond motion in immigration court or asking the ICE attorneys handling the case to agree to a bond. Now, we have another way to try and secure the release of clients detained for more than six months thanks to a new decision by the 11th Circuit.

You may ask, how is that fair, why am I not eligible or a bond? Let me explain the law on this issue. If you already have a final order of removal and the government detains you to execute that order, you are not eligible for a bond from an immigration judge. If you are stopped at a land border or airport or seaport and considered an arriving alien and detained, you are not eligible for a bond. If you are removable or inadmissible for almost any criminal ground of removability, you are not eligible for a bond. It makes no difference if you are a flight risk or a danger to the community; if the law says you are not eligible, there is nothing an immigration judge can legally do to grant you a bond.

This part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter 11th Circuit Litigation Newsletter summarizes unpublished BIA decisions from Florida. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

Miami, FL

This part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter 11th Circuit Litigation Newsletter summarizes unpublished BIA decisions from Alabama and Georgia. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

Atlanta, GA

This is part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter Newsletter summarizing important immigration-related cases decided in District Courts in Georgia, Florida, and Alabama, and published BIA decisions nationwide. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

District Court Decisions

This is the latest issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals, District Court decisions from Georgia, Florida, and Alabama, OCAHO decisions, and published and unpublished BIA decisions The summarized cases are for April and May 2016 except for unpublished BIA decisions, which date back to March 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

11th Circuit Decisions

The fourth edition of the newsletter summarizing important immigration- related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for February and March 2016. There are not as many summaries in this issue because there were fewer decisions. Our next edition is scheduled for June 2016 and will feature another new addition, published and unpublished Board of Immigration Appeals decisions, and a new AILA Chapter contributing – South Florida.

This is a group effort of four attorneys – John Gihon, Marshall Cohen, Roberta Cooper & Bruce Buchanan.

District Court Decisions

The fourth edition of the newsletter summarizing important immigration- related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for February and March 2016. There are not as many summaries in this issue because there were fewer decisions. This issue also adds a few feature – summaries of decisions by OCAHO during this same time period. Our next edition is scheduled for June 2016 and will feature another new addition, published and unpublished Board of Immigration Appeals decisions, and a new AILA Chapter contributing – South Florida.

This is a group effort of four attorneys – John Gihon, Marshall Cohen, Roberta Cooper & Bruce Buchanan.

11th Circuit Decisions

This is the third issue of the newsletter summarizing important immigration-related cases decided by the District Courts from Georgia, Florida, and Alabama. The summarized cases are for December 2015 and January 2016. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Ali v. Swacina, et al., 15-cv-61820-BLOOM/Valle (S.D. Fla. Dec. 11, 2015)

Mr. Ali brought suit against Department of Homeland Security (DHS) and a myriad of co-defendants for taking part in the denial of his N-400 Application for Naturalization pursuant to 8 U.S.C. § 1421(c). This Code provision allows persons, like Mr. Ali, who have had their N- 400s denied and who sought and were denied relief during an N-336 review hearing, to bring their action directly to District Court for a de novo review of the decision. Mr. Ali joined multiple other federal law enforcement agencies in the action. These collateral agencies sought and received dismissal of the action against them as only one agency, DHS, had authority and responsibility for the denial of his N-400. Thus, the suit remained only against the DHS.

This is the third issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for December 2015 and January 2016. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Vaz v. Skinner, 14-15791 (11th Cir. Dec. 23, 2015) (unpublished)

The 11th Circuit affirmed the district Court’s holding that the petitioner, a native of Brazil, was not entitled to relief pursuant to a 28 U.S.C. §2241 habeas corpus claim. Petitioner’s argument of lack of adequate medical treatment while in detention fell outside of habeas corpus law as it is a challenge to the conditions of confinement, not to the fact or duration of the sentence as is necessary. The Court added that even if the petitioner had made a proper claim, release from imprisonment is not an available remedy for a claim of conditions of confinement. Petitioner’s second argument of unreasonable detention also failed because he prevented his own removal to Brazil. While the Attorney General has 90 days to remove an alien, the removal period can be extended “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary for the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. §1231(a)(1)(C). Although he had been detained more than 6 months (3 years), he could not assert a claim under Zadvydas v. Davis, 533 U.S. 678 (2001), because there was a likelihood of removal in the near future. In this case, the reason behind the delay was petitioner’s refusal to voluntarily sign his travel document or inform Brazil of his willingness to return.