Winning Writs of Habeas Corpus After Sylvain and Hosh: Using 9th Circuit Precedent

The Third Circuit Court of Appeals and the Fourth Circuit held that immigrants are subject to mandatory detention regardless of when they are released from criminal custody. ( The Third Circuit in Sylvain and the Fourth Circuit in Hosh). Prior to Sylvain , I filed twenty writs for clients who were picked up after being released from criminal incarceration and the majority were successful. What now? Filing a writ in the Third or Fourth Circuits would be fruitless because the District Court is bound by the Circuit Court of Appeals’ decisions. Recently, the 9th Circuit Court of Appeals handed down a great decision which should encourage attorneys to keep on fighting.
The Ninth Circuit Court of Appeals held that the mandatory detention statute has a six-month temporal limitation. “§ 1226(c)’s mandatory language must be construed to contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review.” Rodriguez . The Rodriguez decision involved a different issue, but an examination of the identical statute as in ‘when released’ habeas cases. Therefore, it is a powerful precedent because it provides counterarguments against the government . For example, in many cases the AUSA will make the following arguments:
1. Congress enacted mandatory detention to counteract the flight of immigrants released during removal proceedings and the crimes that they will commit. Thus, why should the statue be read to entitle them to bond. In Rodriguez, the court rejected this argument in favor of a temporal limitation on mandatory detention because of the constitutional concerns raised by an extensive period of detention. Therefore, courts should continue to reject the government’s arguments.
2. Immigrants who are detained after they are released from incarceration will receive a windfall in comparison to those who are picked up immediately on release. However, In Rodriguez, the Court held that every immigrant detained beyond six months is entitled to a bond hearing. Thus, the immigrant who is not detained upon release does not receive any windfall because he should be entitled to a bond hearing in six months. Also, in Diop, the Third Circuit Court of Appeals held that prolonged detention is unreasonable. Thus, immigrants who are detained for an extended period of time are entitled to bond. How can the government claim that your client receives a windfall when they will be entitled to a bond hearing in the future?
The Rodriguez decision should be mined for great counter-arguments within the when released context. I am going to be posting regularly about this topic. Also, the AILA Federal litigation committee provides a great set of sample briefs Please contact me at with any questions or comments.


Important Immigration Law Update: BIA holds that the intent to distribute proceeds of a drug enterprise is not an aggravated felony

The intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B). This  change in legal precedent  provides a safe haven for federal defense attorneys to advise clients of an offense that will not ensure automatic deportation. A plea to an aggravated felony is considered “automatic deportation” because there is virtually no relief that a client can assert.

The BIA held, “the offense is not an aggravated felony under the ‘illicit trafficking’ clause of section 101(a)(43)(B) because it does not involve ‘unlawful trading or dealing’ in federally controlled substances, Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992), but rather involves conduct engaged in after such unlawful trading or dealing has been consummated.  Although distribution of proceeds is an integral part of a drug organization’s business, such conduct is too distinct from the actual physical distribution of drugs to be considered an “illicit trafficking” aggravated felony.  Matter of Ivan Enedelio FLORES-Aguirre, 26 I&N Dec. 155 (BIA 2013).


Here is a link to the full decision:

The Supreme Court of the United States Strikes Down DOMA and What it Means for Immigrants

Today, the Supreme Court of the United States held that the Federal Defense of Marriage Act violated the Constitution. In doing so, SCOTUS held that the federal government can no longer deny same sex couples more than 11,000 benefits which heterosexual couples enjoy.

One of the benefits which same sex couples will enjoy is the right to petition for their husbands or wives to get a green card. This is a fundamental change in immigration  policy.  The wait has been far too long for many same sex couples. Many same sex spouses suffered because prior to this change, a same sex spouse had no right to remain in the United States despite the fact that he was married to a United States Citizen. An immigrant would remain in legal limbo and not be allowed to receive work authorization.

Now, a same sex spouse can receive a green card based upon their marriage to a United States Citizen. The spouse must have entered the country legally and have a criminal record which will not raise any red flags. If the spouse has a criminal history they will be eligible to seek amnesty from immigration.

I am attending the American Immigration Lawyers Conference in San Francisco where the head of the Department of Homeland Security, United States Customs and Immigration Services will speak on how they plan to change policies in light of the recent decision. I plan on updating my blog as soon as I know.  I can only hope that USCIS will act quickly in implementing this policy.


Tentative Deal Reached on Border Security Which Is a Key Part of Immigration Reform

Mexico ImmigrationLast night Senators reached a tentative deal on new border security measures which may allow immigration reform. This deal would 700 more miles of fences across the border and double the number of border agents. This deal could pave the way for more Senators to support bill.

Border security is one of the big snags in passing immigration reform. Conservative senators complain that the border is not secure enough. They are unwilling to pass reform until it is.

Make Your Voice Heard

1. Require use of lapel cameras on all border enforcement agents to protect against excessive force or other unlawful agent conduct;

2. Grant newly-established Border Task Force subpoena power to ensure adequate oversight and accountability

3. Include Leahy Amendment 1410, which reforms 100 mile rule by limiting Border Patrol powers without a warrant to a 25 mile zone and 10 miles for private property. This will keep agents at the actual border as opposed to policing border communities as they currently do.”

Please call these offices:

GRASSROOTS CALLS – please generate as many as calls as possible to these offices:

Rubio: 202-224-3041

Hoeven: 202-224-2551

Corker: 202-224-3344

DHS Extends TPS For Syria

Tanks in Syria

Tanks in Syria

The Department of Homeland Security extended the TPS designation for Syria. The extension is for eighteen months from  October 1, 2013 through March 31, 2015.

TPS allows an immigrant to remain in the US with work authorization. It is a special type of visa for immigrants who can not return to Syria because of the on going armed conflict in Syria.  Return to Syria would pose a serious threat to the personal safety of Syrian nationals.

The 60-day re-registration period runs from June 17, 2013 through August 16, 2013. USCIS will issue new EADs with a March 31, 2015 expiration date to eligible Syrian TPS beneficiaries who timely re-register and apply for EADs under this extension.

Under the redesignation, individuals who currently do not have TPS (or an initial TPS application pending) may submit an initial application during the 180-day initial registration period that runs from June 17, 2013 through December 16, 2013. In addition to demonstrating continuous residence in the United States since June 17, 2013 and meeting other eligibility criteria, initial applicants for TPS under this redesignation must demonstrate that they have been continuously physically present in the United States since October 1, 2013, the effective date of the redesignation of Syria, before USCIS can finally grant them TPS.

Federal Court Holds that Government Can Not Detain Immigrant for 28 Months

A District Court located in Newark, New Jersey held that it is unreasonable to detain an immigrant for twenty eight (28) months.   The government detained Kelechi Nwozuzu while he was fighting deportation.

The District Court held that this lengthy period of detention violated his Fifth Amendment right to due process. For a full copy of the decision please click on the link below. Decision Courtesy of Theodore Cox

Nwozuzu kelechi gerald 8.16.2012


In switch, Boehner wants to pass House version of immigration BEFORE Senate’s

IMMIGRATION TRACKER — “Boehner begins to sketch immigration plan,” by Politico’s Seung Min Kim and Jake Sherman:
“Speaker John Boehner … is beginning to sketch out a road map to try to pass some version of an overhaul in his chamber – a welcome sign for proponents of immigration reform. If his goal is met, it’ll be a busy few weeks. The speaker wants committees — Judiciary has primary jurisdiction — to wrap up their work on a version of immigration legislation before the July 4 recess. And he would like immigration reform to see a House vote before Congress breaks in August. His goal is to begin moving either bite-size immigration bills or the bipartisan House immigration group’s legislation through committees before the Senate passes its bill , which could happen by the end of this month. The Senate Gang of Eight plan is on the Senate floor this week and is expected to get a vote before July 4 …

“Boehner’s thinking … represents a significant shift and suggests a new urgency for Republican leadership. It is a moderately good sign for the prospects of immigration reform in the House. … The leadership’s plan is to allow the bipartisan group to release its legislation and closely monitor how it is received by House Republicans. If it’s decried as too lenient, leadership could fall back on Judiciary Committee Chairman Bob Goodlatte’s (R-Va.) small-bore proposals, which he has been slowly considering in committee. They so far include measures governing E-Verify, and changing the high-skilled and agricultural worker visa programs. Republican leadership prefers to move immigration reform in pieces, rather than a large bill. But that’s pure procedural calculation, since a House-passed bill would have to be meshed with any Senate bill before it is sent to the White House. … [T]he [House gang] – now down to seven members after [Rep. Raul] Labrador’s exit – [is] still planning on releasing a single bill. … Sen. Kelly Ayotte (R-N.H.) … announced on CBS’s ‘Face the Nation’ and with a lengthy statement on her website that she was supporting the Senate Gang of Eight’s immigration bill.”

Full article: