Court

NY Immigration Courts Closed Tomorrow, February 13, 2024

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Check the EOIR Operational Status Webpage EOIR Operational Status Update An email sent out by EOIR states that the Broadway, Varick Street, and Federal Plaza Immigration Courts in New York City will be closed tomorrow, February 13, 2024. The Boston, Elizabeth, Hartford, New York – Broadway, New York – Federal Plaza, New York – Varick, and Newark immigration courts will be closed tomorrow, Feb. 13. Please see EOIR’s Operational Status webpage for details on internet-based hearings that will proceed, the alternate filing location, and agency operations nationwide.   Internet-Based Hearings Are Not Cancelled Depending on Immigration Judge Check the EOIR Operational Status Webpage to see if your online hearing is going forward because they are specific to the Immigration Judge. 26 Federal Plaza: Internet-based hearings will proceed for IJs Cohen, Douchy, Golovnin, Gordon-Uruapka, Johnson-Papillo, Loprest, McFarland, Segal, Sponzo, Thompson, Tsankov, Segal, and Zagzoug. Alternate filings at Batavia. Varick Street: Internet-based hearings will proceed for IJs Kolbe and Mulligan. Alternate filings at Batavia. 290 Broadway: Internet-based hearings will proceed for IJ McKee. Alternate filings at Batavia. EOIR Operational Status

An Incurable Notice to Appear

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Matter of Aguilar Hernandez

Matter of Aguilar Hernandez January 31, 2024, the Board issued a decision in Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) finding: The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).  Full Decision. Basis for the Board’s Decision Prior Decisions  Impact of The Decision This case will help to make some people eligible for cancellation of removal because the Board says that respondents will continue to accrue physical presence in the US for purposes of cancellation of removal until the Department has properly cured the defective Notice to Appear (NTA)1.   As a result, some people who think they were ordered removed can argue they have grounds to reopen their proceedings and then may be able to pursue 42b cancellation of removal in reopened proceedings. Further, respondents that were originally put into removal proceedings before they had 10 years in the US, may actually be eligible for cancellation of removal if their initial NTA was deficient and DHS has yet to cure it, or the Department cured it after they accrued 10 years of presence using this new manner of calculation established by this decision2:   Indeed, it is a strategic decision by a respondent to raise (or not raise) an objection to a defective notice to appear lacking the date and time of the initial hearing before the Immigration Judge. By electing not to raise the objection, the respondent’s notice to appear remains defective and the respondent will continue to accrue continuous physical presence in the United States for the purposes of cancellation of removal.4 Conversely, if after the respondent raises a timely objection, DHS remedies the defective notice to appear, then the “stop-time” rule prevents the respondent from accruing additional physical presence for purposes of cancellation of removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).   1.Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) 2.  Id at 779. More Information The full decision can be found at https://www.justice.gov/d9/2024-01/4071.pdf.

Convention Against Torture (CAT)

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As per international and U.S. law, the principle is clear that an individual cannot be returned to a country where they are likely to be subjected to torture. US law has created a legal process specifically designed to comply with the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (commonly known as “CAT” or “the Convention”) obligates countries that are signatories to condemn and prohibit torture. Article III of the Convention explicitly states that a signatory nation is prohibited from “expelling, returning, or extraditing” an individual to a country where there exist “substantial grounds for believing that he would be in danger of being subjected to torture.” The United States joined CAT in 1988, with Congress ratifying the treaty in 1994. In 1998, the U.S. officially declared its intent to implement CAT as part of the Foreign Affairs Reform and Restructuring Act (“FARRA”). In 1999, the former Immigration and Naturalization Service established regulations that outline the standards and procedures for protection under the Convention. These regulations are detailed in 8 C.F.R. §§ [1]208.16 to [1]208.18. Protection under Article III of the Convention serves as a crucial option for noncitizens who do not meet the prerequisites for asylum but can demonstrate that they would face torture if they were to return to their home country. Importantly, relief under the Convention is not a matter of discretion. For those individuals who meet the eligibility requirements, it is mandatory for the immigration judge (IJ) to grant them protection. What Is Considered Torture? The regulations contain a definition of torture and list the types of acts that constitute torture.8 CFR § 1208.18(a)(1) provides: Torture is defined as any act by which severe pain or suffering, whether physical or mental, isintentionally inflicted on a person for such purposes as obtaining from him or her or a thirdperson information or a confession, punishing him or her for an act he or she or a third personhas committed or is suspected of having committed, or intimidating or coercing him or her ora third person, or for any reason based on discrimination of any kind, when such pain orsuffering is inflicted by or at the instigation of or with the consent or acquiescence of a publicofficial or other person acting in an official capacity. That statute denotes three essential elements for torture: (1) the intentional infliction, (2) of severe pain and suffering (physical or mental), (3) committed by or at the acquiescence of the government. The regulation goes on to provide the following limitations to the definition: The act of torture “must be specifically intended to inflict severe physical or mental pain or suffering” and “an act that results in unanticipated or unintended severity of pain and suffering is not torture.” The regulations state that to qualify for protection under CAT, the torture must be “specifically intended to inflict severe physical or mental pain or suffering.” Government Actor or Government Acquiescence Applicants seeking CAT (Convention Against Torture) relief are required to establish that the torture they are at risk of experiencing will be perpetrated “by or at the instigation of or with the consent or acquiescence of a public official or another person acting in an official capacity.” When the torturer’s actions are clearly linked to an official governmental policy or a consistent pattern of behavior, indicating that they are acting in their official capacity, it constitutes an unmistakable case of an official act. However, situations may arise where a lower-level government employee engages in acts of torture without explicit authorization from the government. “‘[r]ogue officers’ or ‘rogue officials’ are public officials who act outside of their official capacity, or, in other words, not under color of law.” Matter of O-F-A-S-, 27 I&N Dec. 709, 713–14 (BIA 2019). How Does A Respondent Prove Torture for CAT Protection? Applicants may present various types of evidence to support their claim: It’s important to note that the burden of proof lies with the applicant. Relocation Unlike the asylum and withholding of removal regulations, the CAT regulations do not state that the applicant must only prove that internal relocation would not be reasonable. At the same time, the regulations do not require a showing that the applicant could not live safely elsewhere in the country. The Ninth Circuit has clarified that an applicant for CAT need not prove that relocation within the country of removal is “impossible.” Instead, “the IJ must consider all relevant evidence” and “no one factor is determinative.” But it is the applicant’s burden to prove a likelihood that they will be tortured if removed, so whether internal relocation is a possibility is part of that inquiry. The Second Circuit recently took the same position, pointing out that the regulations “do not require an applicant to prove that it is not possible to relocate to a different area of the country in order to evade torture.” How Does Someone Apply For CAT Protection? As of April 1, 1997, asylum applications are also subject to evaluation for eligibility for withholding of removal under the Convention Against Torture (CAT) if the applicant either requests such consideration or if the evidence presented suggests that the applicant may be subjected to torture in the country of removal. The same application form, Form I-589, is used for both asylum and withholding of removal, and it is also the form used for CAT relief. While it is possible to apply solely for CAT using Form I-589, applicants typically use the form to request all three forms of relief unless there is a clear bar to asylum and withholding. An applicant is considered for CAT relief by checking the “Torture Convention” box in the I-589 form. For CAT relief, an applicant must demonstrate that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” This standard is defined as a probability greater than fifty percent. It’s important to note that the testimony of the applicant, if found credible, … Read more

Mandatory Detention

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When a foreign national is taken into the custody of U.S. Immigration and Customs Enforcement (ICE), one of the initial steps taken by the deportation officer is to determine whether or not to grant a bond. A bond is a monetary payment made to the U.S. government (often by a friend, relative, or bond company) that allows the individual to be released from custody while pursuing relief in removal proceedings in front of an immigration judge. The bond money paid is intended to ensure that the foreign national will attend their hearings, as failure to do so will result in the government keeping the money. However, some foreign nationals are not eligible for release on bond, even if they are willing to pay, regardless of the circumstances. Specifically, those who have criminal convictions will not be able to request release on bond because of the mandatory detention statute INA § 236 (c). Mandatory Detention Statute INA § 236 (c), The Attorney General shall take into custody any alien who- (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence 1 to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. INA § 236 (c) Serious Harms of Mandatory Detention If a respondent is subject to mandatory detention neither ICE nor an immigration judge will entertain the possibility of granting them bond. These individuals will remain in jail throughout the removal proceedings, irrespective of their immigration status or personal circumstances. Each year, ICE detains over 100,000 immigrants, including people who have lived in the U.S. fordecades, parents of U.S. citizens and individuals who come to the country seeking safety. ICE subjects people in detention to dangerous conditions and substandard medical care. Noncitizens that are detained by ICE are typically held in jails along with criminals that are being detained by the State pending a criminal trial or serving short sentences. Detention facilities are often located in rural, hard to reach areas, inaccessible to families and legal counsel. In New York ICE hold noncitizens in several jails in New Jersey that are run by various counties and private prison companies (Bergen County, Hudson County and Kearny are the most commonly used facilities). Bergen County Jail was actually the subject of a season of the TV show “Locked Up” where viewers saw the widespread drug trafficking and inmate on inmate violence in the facility that was filled with career criminal gang members. Grounds for Mandatory Detention The grounds for mandatory detention always involve some criminal activity on the part of the noncitizen. The exact type depends on whether U.S. immigration authorities are charging them with being inadmissible to the United States or deportable from the United States. The document containing the immigration charges against you, called a Notice to Appear (NTA), tells you which one the government is charging you with. If you were legally admitted to the United States the last time you came, you’re subject to grounds of deportability. If you were never legally given permission to come to the U.S., or if you come back from a trip outside the U.S. after having committed a certain type of crime, you’re subject to the grounds of inadmissibility. Mandatory detention applies to respondents charged as inadmissible due to conviction for: An actual conviction is not required in all of the above cases. If you admitted committing certain crimes, or there’s enough evidence to suggest you committed certain crimes, you can be subject to mandatory detention. Respondents charged as deportable/removeable based on criminal convictions for: MANDATORY DETENTION FLOWCHART NOTES: Two ore more CIMT convictions from “single scheme”: A person is deportable for two or more CIMT convictions after admission, unless the convictions arose from a “single scheme of criminal misconduct.” INA § 237(a)(2)(A) (ii). The BIA defines single scheme to mean essentially from the same incident, where the perpetrator has no time to reconsider continuing with the criminal plan. Matter of Islam, 25 I&N Dec. 637, 638 (BIA 2011). The above flowchart does not ask about this. The petty offense exception applies to the inadmissibility, but not to deportability based on crimes involving moral turpitude (“CIMT”), and also to the bar to establishing good moral character based on CIMTs. Immigration and Nationality Act (“INA”) §§ 212(a)(2)(A)(i)(II), 101(f)(3). The petty offense exception requires a potential sentence that does not “exceed” one year, so one year is okay. The potential sentence must be one year or less, the sentence imposed must be six months or less, and the person must have committed just one CIMT. The above flowchart includes the petty offense exception. Petty offense exception and non-LPR cancellation: A conviction for a petty offense that fits within the exception may still bar a respondent from non-LPR cancellation of removal (42B) relief under INA § 240A(b)(1)(C), See Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010). This rule may change in the Ninth Circuit Ninth Circuit. See Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1088-93 (9th Cir. 2017), but at the moment the Board continues to apply the rule. See Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018).