Florida Immigration Lawyer Blog

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Vaz v. Skinner, 14-15791 (11th Cir. Dec. 23, 2015) (unpublished)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

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. 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.

Vicolas, et al. v. U.S. Attorney General, 14-15174 (11th Cir. Nov. 30, 2015) (unpublished)

The 11th Circuit Court of Appeals (11th Circuit) found that the record did not compel reversal of the BIA’s and IJ’s determination that the petitioner failed to credibly and persuasively establish a nexus between alleged persecution and his political beliefs in his asylum claim. Under Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007), the Court must be compelled to find that the alien will be persecuted because of his political opinion in order to reverse a finding of lack of sufficient nexus. Though an applicant’s testimony alone may be sufficient to meet his burden of proof, the Court found petitioner’s testimony of alleged incidents of police beatings due to his political beliefs was inconsistent, vague and implausible. The Court noted that in all organized protests or meetings, the petitioner was the only one to be harmed even though he had only just been involved in politics in Moldova for a few months. Other individuals, who had opposed the Communist Party for years, were not hurt. For every arrest, there was another plausible reason for his detention that was unrelated to his political views. Furthermore, his wife, who was present at one of the incidents, did not testify to corroborate his testimony. Lastly, the petitioner’s evidence was mostly based on second-hand information as it originated directly from the petitioner without independent confirmation.

The Board of Immigration Appeals recently published two new cases. One, about NACARA (Nicaraguan Adjustment and Central American Relief Act) will have limited effect on most immigrants’ lives as very few people still qualify for this form of relief from removal. The second case is another example of why every criminal defendant who is not a citizen needs a crimmigration attorney to advise them during their criminal prosecution.

Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015); In a decision limited to NACARA (Nicaraguan Adjustment and Central American Relief Act) eligibility, the Board held that when a respondent was subject to multiple grounds of removability, the ten-year continuous physical presence requirement begins at the point of the most recent ground triggering removal. In this case, the respondent entered without admission or parole in 1996 and this triggered his first ground of removability. The respondent was subsequently convicted of possession of cocaine in 2012, triggering an additional basis for removal. The Board held that this respondent did not qualify for NACARA (heightened standard due to the criminal conviction), because the respondent could not show ten years of continuous physical presence after the 2012 conviction.

Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015); The Board held that when a respondent is sentenced to serve a year or more in a substance abuse treatment facility, that sentence constitutes a “term of confinement” as is required to support certain aggravated felonies under INA § 101(a)(43). The Board focused on the fact that a person sentenced to this type of treatment facility is not free to leave during the term of the sentence. The Board reasoned that “term of confinement” is not limited to actual jail time, but can include other forms of confinement, including custodial treatment facilities.