California Immigration Lawyer Blog

Hasn't that already been decided? That was my reaction when I read the 9th Circuit's decision issued today in Meza-Vallejos vs. Holder. In this case, the issue before the court was whether Meza -Vallejos was in violation of his order of voluntary departure when the last day fell on a Sunday, and on a Monday, he filed a Motion to Reopen.

Mr. Meza-Vallejos is a citizen of Peru. He applied for asylum and had a hearing in front of an Immigration Judge. The Judge denied asylum but granted voluntary departure. He appealed to the Board of Immigration Appeals ("BIA") and the BIA affirmed the Judge's denial of asylum. The BIA, however, renewed Mr. Meza-Vallejos' request for voluntary departure and granted him until July 16, 2005 - a Saturday, to depart the United States.

Mr. Meza-Vallejos did not appeal the BIA's decision. Instead, on Monday, July 18, 2005, he filed a motion to reopen with the BIA with a request for an extension of his period of voluntary departure. He indicated in his motion that he had married a U.S. citizen two weeks previously and she had immediately filed an immigrant petition for him. The BIA denied his Motion to Reopen because although it was timely filed for the purpose of filing a Motion to Reopen, it was two days after his voluntary departure period had ended. They denied it because Mr. Meza-Vallejos had overstayed his voluntary departure. Various appeals followed until the case reached the 9th Circuit.

Continue reading "The last day of voluntary departure when deadline falls on weekend " »

On April 19, 2009, I wrote a post about Mr. Demjanjuk and Germany's request to extradite him. Specifically Germany has requested the extradition of Mr. Demjanjuk so that he can be tried on 29,000 counts of human rights violations when he was serving as a concentration camp guard in the Nazi Germany. Mr. Demjanjuk filed a request to re-open his deportation case and a stay of removal seeking relief under the Convention Against Torture.

Today the 6th Circuit Court of Appeals denied his request for a stay of the removal order. The Court noted that the BIA denied the request to reopen his case because the BIA concluded Mr. Demjanjuk failed to submit sufficient evidence to show that he would be subjected to torture in Germany. Similarly, the Appeals Court found that Mr. Demjanjuk would not suffer irreparable harm in being transported to Germany. The Government has represented that they will transport Mr. Demjanjuk in an aircraft equipped as a medical ambulance and attendance by personnel. Under such circumstances, the Court ruled
that Mr. Demjanjuk's removal to Germany is not "likely to cause irreparable harm sufficient to warrant a stay of removal."

Requesting continuances of cases in Immigration Court can be tricky. You never know if it will be granted because it most often depends on the judge's discretion. There is very little case law on when continuances should be granted. Fortunately, a few days ago, the Board of Immigration Appeals ("BIA" or "Board") decided a case in which it has provided some guidance on when a continuance may be granted.

In Matter of Hashmi, 24 I&N Dec.785 (BIA 2009), the respondent (Mr. Hashmi) was married to an American citizen who had filed a visa petition (Form I-130) on his behalf. The Immigration Judge permitted several continuances in the proceedings to allow time for USCIS to adjudicate the visa petition. If the visa petition would have been approved, Mr. Hashmi would have been immediately eligible for adjustment of status (green card). Mr. Hashmi managed to obtain four continuances but the Judge denied the fifth request. The Judge denied it because he stated that he was forced to meet case completion goals and he needed to make a decision because the case had already been pending for 18 months in the Immigration Court. Mr. Hashmi appealed and after the Board of Immigration Appeals initially denied it, he was finally was successful at the Third Circuit. The Third Circuit reversed and remanded back to the Board of Immigration Appeals.

Upon the case's return to the Board, the BIA considered what factors would constitute good cause for the grant of a continuance in a situation in which the person in removal proceedings (known as the "respondent") has a visa petition pending and would be immediately eligible for adjustment of status (green card) but is waiting for USCIS to adjudicate the visa petition. The BIA decided that there are five factors that a Judge must consider before ruling on a Motion to Continue in this situation. These factors are:

1. the Department of Homeland Security's response to the Motion to Continue;


2. whether the visa petition is prima facie approvable;


3. the respondent's statutory eligibility for adjustment of status;


4. whether the respondent's application for adjustment of status merits a favorable exercise of discretion;


5. the reason for the continuance and any other relevant procedural factors.

The Board stressed that these factors were "illustrative, not exhaustive." (Id., at 790)

Finally, the BIA found that a judge's "case completion goals" "is not a proper factor in deciding a continuance request." (Id. at 794)

Overall this is a very helpful case because it provides us with some guidance in a situation in which we had none before. It will now hopefully be easier to obtain continuances in cases when, through no fault of their own, respondents have been waiting for USICS to adjudicate their petitions.

There is a question on the N-400, Application for Naturalization, that asks:

Between March 23, 1933, and May 8, 1945, did you work for or associate in any way (either directly or indirectly) with:

a. The Nazi government of Germany?
b. Any government in any area (1) occupied by, (2) allied with,or (3) established with the help of the Nazi government of Germany?
c. Any German, Nazi, or S.S. military unit, paramilitary unit, self-defense unit, vigilante unit, citizen unit, police unit, government agency, or office, extermination camp, concentration camp, prisoner of war camp, prison, labor camp, or transit camp?

Every time I assist in citizenship preparation, my clients ask me why that question is still on the form. I answer that it will not be taken off until every person who it could possibly apply to is dead.

Once in a while, we still hear about people involved in Nazi persecution and our government's efforts to de-naturalize and deport such people. One of these people is John Demjanjuk. The U.S. government has spent many years trying to deport Mr. Demjanjuk. Mr. Demjanjuk was originally from Ukraine and had served as a concentration camp guard under Nazi rule. He had failed to disclose his past when he entered the United States in 1952. (For an excellent summary of the immigration proceedings, have a look at the Wikipedia site on John Demjanjuk).

On December 28, 2005, an Immigration Judge ordered Mr.Demanjuk deported. He appealed that decision to the Board of Immigration Appeals and the 6th Circuit Court of Appeals. He lost. Unfortunately no country would take him back so the U.S. Government could not deport him. That is, until now. Recently the German government has requested that Mr. Demjanuk be extradited to Germany to stand trial on 29,000 charges of accessory to murder.

Mr. Demanjuk has filed a Motion to Reopen with the Board of Immigration Appeals and recently on April 14, 2009, a Motion for a Stay of the removal order with the 6th Circuit Court of Appeals. He argues that he is in ill health and that traveling to Germany and standing trial would be a violation of the International Convention Against Torture.

At first I was a little sympathetic to Mr. Demanjuk. He is 89 years old and appears to be in ill health. I do not know why the German government wants to put Mr. Demanjuk on trial now. What will they do if they are successful? Will they carry out an execution? However, the more I thought about it, the more I changed my mind. Mr. Demanjuk is a lucky man, although he might not think so. He has managed to avoid deportation for many years. Even when ordered deported, our government could not carry out the order. Now Germany wants him. He should have been deported several years ago. Many people who have been living in the United States illegally are deported, and they were not concentration camp guards. They were hard working people who only committed the crime of coming to the United States illegally. Mr. Demanjuk, who lied when he came to the United States and committed multiple acts of human rights violations, does not deserve any better by being allowed to stay.

I do not see that travel and a trial in Germany constitute violations against the International Convention Against Torture. Germany will provide him with medical care while he is there. It is probably better than ours. It will be unpleasant to go there and deal with this, but not torture.

Rabbi Hier, of the Simon Wiesenthal Center, summed up the reasons for the extradition the best. "His [Mr. Demanjuk's] defenders say that at 89, he is too old to be deported. His 29,000 victims would have only wished that they would have been so fortunate to reach the age of 89." (It is worth reading his entire statement on the John Demanjuk deportation).

Continue reading "Holocaust Remembrance Day and John Demjanjuk" »