Supreme Court to Hear Drug Deportation Case

The justices will consider the case of a legal immigrant in Texas ordered deported after two minor drug convictions. Some judges have ruled that two such charges constitute an 'aggravated felony.'

The Supreme Court said Monday it would consider whether a strict immigration law called for deporting noncitizens convicted of repeat misdemeanor drug offenses.

The case before the court involves a legal immigrant from Texas who pleaded guilty to possessing less than two ounces of marijuana and later pleaded guilty to possessing a single tablet of Xanax, an anti-anxiety medication.

Although the convictions were minor, judges in some regions have ruled that two misdemeanor convictions for drug possession can count as an "aggravated felony," which is grounds for deportation.

Lawyers for several immigrant rights groups appealed the case to the Supreme Court, arguing it did not make sense to say drug possession was the same as a serious offense, such as drug trafficking.

The justices voted to hear the case of Jose Angel Carachuri-Rosendo, who had lived in Texas since he was 4 and had been a lawful resident since 1993.

After Carachuri-Rosendo pleaded guilty to having the Xanax tablet, a federal immigration judge said he was due to be deported to Mexico because of his aggravated felony.

Carachuri-Rosendo appealed but lost in the U.S. 5th Circuit Court of Appeals in New Orleans, which ruled that a "second possession offense" called for deportation of a noncitizen.

Lawyers for the Obama administration agreed the high court should hear the case to clarify what constituted an aggravated felony.

In other action, the court dismissed a suit by four British Muslims who said they were tortured and abused at the military detention facility at Guantanamo Bay, Cuba, between 2002 and 2004.

They sued former Defense Secretary Donald H. Rumsfeld, former Joint Chiefs of Staff Chairman Gen. Richard B. Myers and other top civilian and military leaders in the George W. Bush administration.

But they lost in the U.S. Court of Appeals for the District of Columbia, which ruled the officials were immune from such claims.

The appeals court judges said officials could not be sued for their actions unless they violated a clearly established law, and the legal rights of the Guantanamo detainees were not clear until the Supreme Court ruled on the issue in 2006.

Eric Lewis, a lawyer for the four British men, urged the high court to hear the case, but the appeal was turned down without comment.

"It's an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision," he said.

By David G. Savage, as posted on the Los Angeles Times, 12/15/09

Granted I-601 Waiver For Inadmissibility Due to Unlawful Presence

Yesterday, our office received the decision from the Manila, Philippines USCIS Officer granting our client her I-601 Waiver Application. She was the beneficiary of an immigrant visa filed by her U.S. citizen husband, but the consular officer determined that she was inadmissible due to an unlawful presence in the U.S., INA § 212(a)(9)(B).

Her USC husband previously hired another attorney to prepare and file the initial I-601 Waiver application. The application was denied and the other attorney missed the 30 day filing deadline for the I-290B appeal.

The USC husband came into our office shortly after the decision became final and our office took over the case. The first thing we did is to talk with his treating psychologist and ask him for a clinical evaluation. After receiving the report, we immediately recognized that the language and diagnosis was insufficient for the necessary showing of extreme hardship for the waiver. We suggested that he see another psychologist that we have worked with in the past who was better able to diagnose and detail the suffering he was experiencing due to the forced separation.

Our office put together a detailed package describing the extreme hardship that the USC qualifying relative suffered and submitted the Form I-601 Waiver application to the Manila Consulate about 4-5 months ago. The decision came relatively quickly and we were able to call our clients yesterday with the good news.

Goldstone's United Nations Human Rights Report on Gaza

President of the Human Rights Council established the United Nations Fact Finding Mission on the Gaza Conflict with the mandate “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”

Here is the full draft version of the Report.


Goldstone UN Report on Gaza -

Child Status Protection Act and VAWA

The Child Status Protection Act (CSPA) prevents children who are either self-petitioning applicants or derivates from aging out of VAWA protection when they turn 21. [See INA §§ 101(f), 203(h), and 204(a)(1)(D)(iii)].

USCIS issued an interpretive memo on August 17, 2004, detailing how CSPA affects VAWA self-petitioners, derivatives, and grantees seeking adjustment of status. ['Yates Memo"].

Children who have been the victim of domestic violence or abuse may file a self-petition for VAWA relief. In order to qualify, these children must be unmarried and under 21 on the date they file the I-360 Petition. If they are over 21 or married on the date of application, they are precluded from filing a self-petition. VAWA 2005 added one exception for individuals who were eligible to self-petition when they were under 21 but failed to file before turning 21 if the domestic abuse was at least one central reason for the filing delay. [INA § 204(a)(1)(D)(v)].

Children may also obtain VAWA relief based on their being named on an I-360 petition filed by their parent due to the parent's being the victim of domestic violence or abuse. these children are classified as derivative beneficiaries, provided they are unmarried and under 21 on the day the I-360 is filed.

DHS Reverse Policy on Asylum Applications for Victims of Domestic Violence

As the New York Times reported July 16, 2009, the Obama Administration, announced in a Supplemental Brief submitted to the Board of Immigration Appeals, a 180 degree reversal from the prior position taken by former Attorney General MuKasey on the question of whether the government recognizes claims for asylum from victims of domestic violence. All of these claims fall under the protection category of "Membership in a Particular Social Group."

The BIA in 1999 issued a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008), which has not conclusively decided the issue of whether asylum claims can be based upon domestic violence.

However, for the first time, the attorneys for the Department of Homeland Security have articulated two scenarios that they acknowledge would fall within the criteria of a grant of asylum. In the brief submitted to the BIA, the DHS attorney states, "the Department will offer here alternative formulations of 'particular social group' that could, in appropriate cases, qualify aliens for asylum or withholding of removal." Pg. 5.

The government brief continues and holds, "that the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship." Pg. 14. DHS puts forward two possible formulations of the social group, "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." Id.

The change by the Obama Administration is dramatic and will potentially open the door to women who have suffered domestic violence at the hands of the abusive spouses. Many thanks to Karen Musalo from the Center for Gender and Refugee Studies at UC Hastings School of Law in San Francisco, California.