Recent Blog Posts

Unmarried Albanian Woman Who Feared Kidnapping and Forced Prostitution Not Part of a Protected Social Group

Gary E. Rosenberg — Fri, 01 Mar 2013 15:52:00 GMT

Court: U.S. COURT OF APPEALS (2^nd Cir.)

Case: Flora Gjura v. Eric H. Holder, Jr., U.S. Attorney General

Date: September 25, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Brooklyn immigration lawyer

**************************************************

TWO MEXICAN NATIONALS PLEAD GUILTY TO CONSPIRACY TO COMMIT SEX TRAFFICKINGA

**************************************************

Facts: In 2004 Albanian entered the U.S. using a fraudulent Italian passport. In 2005 she applied for asylum and to have her removal withheld. She told the immigration authorities that she feared that the Albanian gangsters would kidnap her and force her into prostitution.

In 2008 a immigration judge granted her asylum, holding that she belonged to the group "young, unmarried Albanian women" — and that they were at special risk for kidnapping for forced prostitution.

Homeland Security appealed to the Board of Immigration Appeals. The Boardof Immigratiopn Appeals overruled the immigration judge by holding that the protected group found by the immigration judge was too vague of amorphous to be a protected group.

Holding: She couldn't show that she was at any greater risk than married women or even children. Nor could she show that that the crimes she feared were due to government involvement or government inability to control the criminal elements involved.

Her petition is denied.

Mexican Can't Show 10 Years of Continuance Physical Presence Where He Voluntarily Departed, Despite Claim That He Wasn't Told His Rights

Gary E. Rosenberg — Thu, 21 Feb 2013 04:33:00 GMT

Court: U.S. Court of Appeals (10^th Cir.)

Case: Hector Barrera-Quintero v. Eric H. Holder, Jr., United States Attorney General

Date: November 15, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) New York immigration attorney

**************************************************

MEXICAN WHO RETURNED TO MEXICO & ENTERED U.S. WITH FALSE DOCUMENT INTERRUPTED 10 YEARS "CONTINUOUS PHYSICAL PRESENCE" & INELIGIBLE FOR CANCELLATION OF REMOVAL

MEXICAN NEVER A LAWFUL PERMANENT RESIDENT (LPR), HAVING OBTAINED HIS STATUS BY A BIGAMOUS MARRIAGE; HE IS DEPORTABLE FOR DRUG CRIME

**************************************************

Facts: Alien entered the U.S. illegally from Mexico in 1990. In 1993 he was sentenced to probation in California for wife beating. He ended up in Utah where he was arrested in 2004 and convicted for trying to obtain a driver's license with a fake Social Security card.

Given a choice by immigration officials, he chose to voluntarily return to Mexico in 2004.

Barrera-Quintero came back to the U.S. illegally a few months later. He was arrested for a second time in Utah in 2007 for trying to use phony documents to get a driver's license.

He asks the immigration judge to cancel his removal because he was here for 10 years without interruption, his removal would cause his child hardship, and he hasn't been convicted of a disqualifying offense.

Immigration authorities oppose his request because his 2004 departure to Mexico interrupted the ten year-period of continuous presence.

Barrera-Quintero argues that he was not properly informed of his rights in 2004, so his departure shouldn't count.

The Immigration Judge ruled that Barrera-Quintero's Utah and California criminal convictions were for crimes involving moral turpitude (CIMT) and that his departure in 2004 cancelled his required 10 years of continued presence in the U.S.

The Board of Immigration Appeals: affirmed the immigration judge and decided that he was removable and could not get cancellation of removal, without reaching the question of the Utah conviction.

The U.S. Court of Appeals held: Barrera-Quintero 2004 departure broke the continuous physical presence 10 year requirement and he was removable. The Court didn't reach the CIMT issue. He will be removed.

Angolan Member of FLEC Belonged to or Lent Material Support to a Terrorist Organization

Gary E. Rosenberg — Fri, 15 Feb 2013 01:07:00 GMT

Court: U.S. Court of Appeals (4^th Cir.)

Case: Adriano De Almeida Viegas v. Eric H. Holder, Jr., Attorney General

Date: November 19, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) New York immigration lawyer

**************************************************

NO ASYLUM FOR SRI LANKAN WHO ASSISTED ORGANIZATION ENGAGED IN POLITICAL VIOLENCE; "MATERIAL SUPPORT BAR" APPLIES

**************************************************

Facts: Born in Angola, this alien joined the FLEC in 1999, an internal Angolan independence movement. He paid dues and hung posters and, in 2003, participated in a peaceful protest, at which he was arrested. De Almeida Viegas came to the U.S. in 2005 using a fake French passport. Then he applied for asylum.

He went to a hearing before an immigration judge.

Homeland Security took the position that he belonged to or supported a terrorist organization, the FLEC.

The alien argued that FLEC is a peaceful political movement.

The Immigration Judge: Believed De Almeida Viegas's testimony, but denied asylum and denied cancellation of removal because FLEC is a terrorist organization.

The Board of Immigration Appeals: Affirmed the immigration judge's decision as correct.

Viegas argues: The Board of Immigration Appeals should not have placed on him the burn of proving that he belonged to a non-violent faction of FLEC.

This Court holds: The Board of Immigration Appeals was correct in finding that FLEC was a terrorist group as most of its factions had a military faction that conducted violent activities. And De Almeida Viegas knew or should have known this. Also, his actions on behalf of FLEC amounted to "material support."

The Board of Immigration Appeals was correct in denying withholding of removal and asylum to De Almeida Viegas.

Peruvian Convicted of Stalking Ex-Girlfriend is Removable

Gary E. Rosenberg — Sat, 09 Feb 2013 03:53:00 GMT

Case: Matter of Jorge Isaac Sanchez-Lopez

Date: November 29, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Queens immigration attorney

**************************************************

Facts: Sanchez-Lopez came here from Peru in 1993 as a legal immigrant and an LPR. In 2011, he was convicted in California of the crime of stalking.

After a hearing, an immigration judge found him subject to removal. This appeal to the Board of Immigration Appeals followed.

Issue: The immigrant's appeal presents the question of how to define the term "crime of domestic violence." The alien argues that he only tried to enter his ex-girlfriend's house one time. But the California law he was convicted under required repeatedly engaging in the conduct.

Holding: The Board of Immigration Appeals uses the ordinary meaning of the term.

The offense of stalking is a "crime of stalking."

Accordingly, we conclude that the Immigration Judge properly found the respondent to be removable based on his conviction for stalking. The Immigration Judge's holding that the Sanchez-Lopez was a criminal repeat offender is not changed.

The Immigration Judge correctly denied the request for cancellation of removal. Sanchez-Lopez's appeal is dismissed.

Pakistani Husband And Wife Denied Asylum Where Their Troubles Based On Breakup Of Their Earlier Marriages To Others And Not Political Reasons

Gary E. Rosenberg — Mon, 04 Feb 2013 02:41:00 GMT

Court: U.S. Court of Appeals (7^th Cir.)

Case: Hafsa Shaikh and Asim Shaikh v. Eric H. Holder Jr., Attorney General

Date: November 26, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Queens immigration lawyer

**************************************************

RAPE OF CAMBODIAN NOT POLITICAL; NOT "PERSECUTION" FOR IMMIGRATION PURPOSES

**************************************************

Facts: Pakistani husband and wife threatened by political movement entered the U.S. in 2006 and requested asylum. The wife had been married to someone else, had worked for the party but never joined it. She became disillusioned with it and began an affair with a man whose wife was active in the party. The two aliens here trying to immigrate divorced their spouses and married each other. They received threatening phone calls from party members. They were subjected to violent assaults.

They seek asylum.

The immigration judge believed their testimony but ruled that their problems were not political in nature but due to their marital infidelity and that they hadn't shown that the Pakistani government couldn't protect them. The judge denied their application for immigration asylum.

The Board of Immigration Appeals refused their appeal of the immigration judge's decision.

Holding:

The Shaikhs might have experienced some mistreatment because they withdrew from participating in the political party, but this wasn't the main reason for their troubles in Pakistan. In fact, the members of the political party mainly raised objections to the Shaikhs leaving their then spouses. Their request for immigration asylum is refused.

No Asylum For Guatemalan Who Can't Show Fear Of Past Persecution Or Fear Of Future Persecution, Which Is Less Likely Due To Changed Country Conditions

Gary E. Rosenberg — Wed, 30 Jan 2013 05:15:00 GMT

Court: U.S. Court of Appeals (8^th Cir.)

Case: Pedro Garcia-Colindres; Brenda Maribel Garcia; Sergio Geovani Garcia Cano v. Eric H. Holder, Jr., Attorney General of the United States

Date: November 30, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Brooklyn immigration attorney

**************************************************

GHANIAN CONVICTED OF DRUG CRIME SEEKS DEFERRAL OF REMOVAL; CASE REMANDED (SENT BACK) TO BIA TO DETERMINE LIKELIHOOD OF ALIEN'S TORTURE IF REMOVED

**************************************************

Facts: This Guatemalan entered the U.S. illegally in 1993 after members of the police ransacked his home looking for his son and weapons. He was taken to the police station, threatened and released. His son disappeared.

Two years after Garcia-Colindres came here, his other son was captured in Gulamala, tortured with acid, and died. His wife entered the U.S. illegally a few months later.

In 2004, his youngest daughter joined them here.

His oldest daughter tried to gather documents in Guatemala to help her family's immigration process in the U.S. In 2007 this daughter was shot in Guatemala, with her murderer never identified.

In 1994 he applied for asylum. Believing a Guatemalan guerilla group responsible for the threat to his family.

In 2005 Garcia-Colindres was charged with removal. In 2006, he amended his request for immigration to include asylum requests for the rest of his family and to withhold removal.

In 2008 the immigration judge turned down his asylum request, because he couldn't show a well-founded fear of future persecution or past persecution. Garcia-Colindres and his family were ordered removed. The immigration judge also pointed out that Garcia-Colindres' fear was unreasonable due to changes in Guatemalan politics.

He sought review of the immigration judge's decision by the Board of Immigration Appeals, which upheld the decision of the immigration judge.

Holding: The holding of the Board of Immigration Appeals is upheld because the harm suffered by Garcia-Colindres did not rise to the level of past persecution -- his brief detention and slight physical harm suffered are not sufficient.

The horrible deaths of his children don't show past persecution because he can't show if the government was involved.

Garcia-Colindres doesn't qualify for a presumption in his favor of a well-founded fear of future persecution because he hasn't shown past persecution.

The legal standard becomes that he must show objectively reasonable and subjectively genuine and fear of future persecution on account of a protected ground.

This argument is weakened by changed country conditions in Guatemala.

Garcia-Colindres asked for humanitarian asylum, but only at the last minute and only in his appeal. His failure to make that argument to the immigration judge or the Board of Immigration Appeals means it's too late for him to make it now.

His petition is declined.

Russian Convicted Of Felony Assault Was Convicted Of Particularly Serious Crime, Was A Danger To The Community, And Is Removable.

Gary E. Rosenberg — Sat, 26 Jan 2013 05:15:00 GMT

Court: U.S. Court of Appeals (9^th Cir.)

Case: Pechenkov v. Eric H. Holder, Jr., Attorney General

Date: December 3, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Brooklyn immigration lawyer

**************************************************

ETHIOPIAN ARMED ROBBER DID NOT "EXHAUST ISSUE" BEFORE BIA OF WHETHER CONVICTED OF "PARTICULARLY SERIOUS CRIME"; COURT LACKS JURISDICTION

SALVADORIAN GUILTY OF FELONY RESIDENTIAL BURGLARY COMMITTED "CRIME OF VIOLENCE," A "PARTICULARLY SERIOUS CRIME"; WITHHOLDING OF REMOVAL DENIED

**************************************************

Facts: Russian immigrant came to U.S. in 1992 and was granted asylum. Sometime after immigration and receipt of asylum, Pechenkov was convicted of felony assault in California. He later filed an application to become a Legal Permanent Resident. His asylum status was revoked and his removal sought.

The immigration judge held that his felony conviction made him removable, pointing out that removal shouldn't be withheld for an alien who is a danger to the community. The immigration judge ruled that Pechenkov was a danger to the community as he had been convicted of a particularly serious crime.

The Board of Immigration Appeals affirmed the decision of the immigration judge.

Holding: The Board of Immigration Appeals didn't abuse its discretion in finding Pechenkov removable for committing a particularly serious crime.

HIV-Positive Kenyan Denied Asylum; His Evidence Was Insufficient

Gary E. Rosenberg — Sun, 20 Jan 2013 06:47:00 GMT

Court: U.S. Court of Appeals (8^th Cir.)

Case: R.K.N. v. Eric H. Holder, Jr.

Date: December 3, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) New York immigration attorney

**************************************************

N CONVICTED OF DISTRIBUTING CONDOMS TO BROTHELS NOT AN "AGGRAVATED FELON" AND IS ELIGIBLE FOR CANCELLATION OF REMOVAL

**************************************************

Facts: Immigrant, a Kenyan, came on a student visa to the U.S. in 1998. He went back to Kenya but in 2001 was denied entry to the U.S. because his visa had expired. He applied for asylum and withholding of removal because he belonged to an opposition political group and is HIV-positive.

In 2005, his hearing testimony was found to not be credible by an immigration judge. In 2006 his appeal to the Board of Immigration Appeals was denied.

Then the Board of Immigration Appeals set aside the dismissal of R.K.N.'s case and sent the case back for a new hearing by an immigration judge. R.K.N. was unable to produce convincing documentation of his claim and the immigration judge denied him. His second appeal to the Board of Immigration Appeals was denied.

He appeals to the U.S. court of appeals, on the ground that the Board of Immigration Appeals failed to properly consider his status as a person with HIV and that the immigration judge wrongfully disregarded his medical records.

The Law:

Where the Board of Immigration Appeals adopts the findings of the immigration judge's adverse credibility determination, as supported by the Record, the Court of Appeals holds to those findings if they're supported by cogent reasons. The Board of Immigration Appeals did not improperly conduct factfinding.

Holding: R.K.N.'s application is denied.

Cambodian is Passive Member of Opposition Party, Doesn't Show Past Persecution or Fear of Future Persecution; Asylum Denied

Gary E. Rosenberg — Mon, 14 Jan 2013 19:30:00 GMT

Court: U.S. Court of Appeals (8^th Cir.)

Case: Kyna La v. Eric H. Holder, Jr., Attorney General of the United States

Date: December 13, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) New York immigration lawyer

**************************************************

El Salvadoran's Opposition to Gang Doesn't Rise to a Protected Fear of Future Prosecution

**************************************************

Facts: Cambodian Kyna La entered as a non-immigrant tourist in 2003 and overstayed her six-month visitor's visa. She seeks withholding of removal and asylum based on fear of future political prosecution ifreturned to Cambodia.

At her immigration hearing, she told the judge that, along with her husband, she supported an opposing political party. They were threatened for their participation. She claims to have been beaten.

After she entered the U.S., her husband and his car went missing and were never found. Shortly after, the government of Cambodia issued an arrest warrant for her.

Her children still lived in her home but were not harassed as they were not opposition party members.

The immigration judge believed her testimony, but decided that she did not show that she might be tortured or persecuted if sent back to Cambodia, and that she hadn't proven past prosecution.

Her appeal to the Board of Immigration Appeals was dismissed.

The Court's Holding:

Kyna La's evidence of "persecution" not severe enough or persuasive. There is no evidence that her husband's disappearance was connected to her political activities.

She feared future persecution, ands this was agreed by the immigration judge, this was not a reasonable fear. As a passive supporter of the political party and not an activist or a person running for public office, she has not shown a likelihood that her removal will lead to her persecution in Cambodia.

Her asylum petition is denied.

Burglary of a Vehicle Under New Mexico Law is Aggravated Felony, Making Mexican LPR Removable

Gary E. Rosenberg — Sat, 05 Jan 2013 19:16:00 GMT

Court: U.S. COURT OF APPEALS (5^th Cir.)

Case: Fernando Escudero-Arciniega v. Eric H. Holder, Jr., U. S. Attorney General

Date: December 11, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Queens immigration attorney

**************************************************

MEXICAN L.P.R. REMOVABLE AFTER CONVICTION FOR "ACCESSORY TO A FELONY" WHICH RELATES TO "OBSTRUCTION OF JUSTICE" AND IS "AGGRAVATED FELONY"

**************************************************

Facts:

Mexican immigrant Fernando Escudero-Arciniega ("Escudero") is an LPR who received probation for committing the crime of burglary of a vehicle in New Mexico. He violated probation several times and had his probation revoked, changing his immigration status so that he was charged with removability.

The immigration court found him removable because under New Mexico law because the crime of burglary of a vehicle is considered an "aggravated felony." He also sought political asylum.

The Board of Immigration Appeals upheld the immigration judge, agreeing that Escudero's burglary conviction was an aggravated felony. This criminal conviction also meant that he could not apply to the immigration authorities for asylum.

Holding of the U.S. Court of Appeals: The rule is that a crime of violence has risk that physical force may be used. In considering a similar statue from Texas, this court has always found that a crime of violence occurred during burglary of a vehicle. Also, he

Is not eligible for asylum due to his conviction of an aggravated felony. Thus, the Board of Immigration Appeals was correct in denying Escudero's appeal.

El Salvadoran's Opposition to Gang Doesn't Rise to a Protected Fear of Future Prosecution

Gary E. Rosenberg — Sat, 29 Dec 2012 16:31:00 GMT

Court: U. S. Court of Appeals (1^st Cir.)

Case: Beltrand‑Alas v. Eric H. Holder, Jr., Attorney General

Date: August 17, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Queens immigration lawyer

**************************************************

EXTORTION DEMAND FROM FAMILY IN EL SALVADOR DOESN'T ENTITLE ALIEN TO AVOID REMOVAL FROM U.S.

SALVADORAN WHOSE UNCLES COMBATED MS-13 FAILS TO PROVE SHE FACED PAST OR FUTURE PERSECUTION

**************************************************

Facts: El Salvadoran entered the U.S. unlawfully in 2003. In 2006 Homeland Security began proceeding for his removal.

He claimed to be entitled to political asylum or, at least, voluntary removal, and had an immigration hearing in 2009.

Beltrand‑Alas testified that his brother belonged to a gang. The gang leader tried to force him to join the gang by threatening to kill him. Beltrand‑Alas' brother was murdered by unknown persons. His family ran. About one year later he left for the U.S. His nephew was then murdered.

The immigration judge ruled that this testimony was believable, but that his application was late and that he had missed the one-year deadline to file.

Also, the immigration judge ruled that the alien had not shown that he had been persecuted, or that he faced future persecution if returned to El Salvador. Beltrand‑Alas also was not a member of a protected social group.

While the immigration judge denied the asylum request he let allowed the alien to depart the U.S. voluntarily.

The Board of Immigration Appeals denied Beltrand‑Alas' appeal, pointing out that his opposition to a gang was more of a personal disagreement.

Case holding: The Board of Immigration Appeals' decision is correct because Beltrand‑Alas didn't prove that he will be subjected to future persecution because he opposes gangs or that he will be a target because of his political opinion or because he may be perceived as wealthy.

Employer Did Not Advertise Job in Best Newspaper, Labor Certification Denied

Gary E. Rosenberg — Sat, 22 Dec 2012 22:21:00 GMT

U.S. Department of Labor

Board of Alien Labor Certification Appeals

800 K Street, NW, Suite 400‑N

Washington, DC 20001‑8002

Date: July 30, 2012

Case: In the Matter of: INTERCONTINENTAL ENTERPRISES, INC., Employer, on behalf of SREENIVASAN, URMILA THATTAPARAMBIL, Alien.

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Brooklyn immigration attorney

**************************************************

IMMIGRANT GRANTED LABOR CERTIFICATION WHERE PLACEMENT AGENCY'S ADVERTISEMENT WITHHELD COMPANY'S NAME

**************************************************

Facts: Employer is seeking am immigrant to work as a "Senior Food Technologist." The job requires a graduate degree and two years of experience in Nutrition Research. The job is in Maryland.

As required by immigration laws, the employee listed the job opening in a newspaper ad, in this case in the Sunday edition of The Washington Examiner.

The U.S. Department of Labor Certifying Officer denied certification, holding that The Washington Examiner paper was not appropriate and not likely to be read by workers who could fill this job.

The Law: To offer a professional job to a foreign worker under our immigration laws, two advertisements must be made in print newspapers. The newspaper must be the best general circulation paper in the are where the job is, and must be appropriate to the job and most likely to get responses from qualified workers.

Holding: The employer has not shown that The Washington Examiner was the best choice for the advertisements. The Washington Post might be better.

Mauritanian Sergeant Who Stood Guard Outside Interrogations Where People Were Tortured Assisted in Torture and is Inadmissible

Gary E. Rosenberg — Wed, 12 Dec 2012 02:50:00 GMT

Court: U.S. Court of Appeals (6^th Cir.)

Case: Mohamed Salem Ould Abdallahi v. Eric H. Holder, Jr.

Date: July 31, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Brooklyn immigration lawyer

**************************************************

IMMIGRANT CONVICTED IN NEW YORK OF CUTTING UP AND DISMEMBERING A DEAD BODY WITH A MACHETE; GETS DEPORTED

**************************************************

Facts: Mauritanian Mohamed Salem Ould Abdallahi lawfully entered the U.S. in 2000 with a visitor status. He overstayed an applied to adjust his immigration status.

He received a notice from immigration authorities in 2005 that his removal was being sought. He promptly married a citizen of the U.S. His wife petitioned for a visa for her alien husband. After he received his visa, Mohamed Salem Ould Abdallahi sought to adjust his status.

Before an immigration judge, in 2007, he testified at a hearing. Mohamed Salem Ould Abdallahi served as a sergeant in the military in Mauritania. His duties included standing guard at interrogations of black people, that included torture.

He testified that he couldn't stop the tortures, was considered a black African by his fellow soldiers, and that he feared if he acted to stop the tortures he would be charged with supporting the prisoners.

Mohamed Salem Ould Abdallahi left his country after his cousin disappesred. He suspdcted that the government would believe that he supported the opposition and and he would be murdered.

An immigration judge found him removable for participating in the tortures. The Board of Immigration Appeals sustained the immigration judge's findings.

Holding: Mohamed Salem Ould Abdallahi's activities in the Mauritanian military are within immigration rules that render inadmissible an alien who "committed, ordered, incited, assisted, or otherwise participated in the commission of any act of torture . . . ." The ruling of the Board of Immigration Appeals is affirmed.

Mexican Who Made Two Misrepresentations to Immigration Authorities Is Still Admissible

Gary E. Rosenberg — Fri, 07 Dec 2012 07:22:00 GMT

Court: U.S. Court of Appeals (6^th Cir.)

Case: Jose Jesus Avila‑Anguiano v. Eric H. Holder, Jr., Attorney General

Date: August 7, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) Brooklyn immigration lawyer

**************************************************

COLOMBIAN REMOVED BECAUSE NOT OF "GOOD ORAL CHARACTER": GAVE FALSE INFORMATION UNDER OATH TO OBTAIN IMMIGRATION BENEFIT

**************************************************

Facts: Jose Avila‑Anguiano is inadmissible to the U.S. because of two misrepresentations.

In 1991 he crossed the border and lied to immigration authorities by saying that he was a U.S. citizen. He pled guilty to this charge and went back to Mexico.

He married a U.S. citizen. In 1993 he applied for a visa, but did not tell immigration authorities about his prior crime, but got his immigration visa.

Immigration authorities then sought to have him removed for his two misrepresentations

Both sides agree that Avila‑Anguiano was removable and they agree that the Government has the authority to forgive (waive) his 1993 immigration fraud.

The dispute here is whether the Government can forgive his fraud from 1991. Avila‑Anguiano is appealing an adverse determination by the Board of Immigration Appeals.

Alien's argument: Under the law, all misrepresentations can be waived by the U.S. Attorney General.

Government's argument: Immigration athorities can only waive (forgive) a misrepresentation made at the time of admission. Thus, the 1993 fraud can be overlooked, but not the fraud from 1991.

Case holding: The statute says only that inadmissibility due to misrepresentation or fraud leaves the alien otherwise admissible. The Government can choose not to remove him despite his 1991 fraud. Avila‑Anguiano wins, and the Board of Immigration Appeals is directed to reconsider his case for waiver of removal.

Bulgarian Denied Request to Reopen Removal Hearing Based on Prior Attorney's Failure to Notify Him; No "Ineffective Assistance of Counsel" Court: U.S. Court of Appeals (7th Cir.) Case: Stelian N. Marinov v. Eric H. Holder, Jr., Attorney General of the

Gary E. Rosenberg — Fri, 30 Nov 2012 05:07:00 GMT

Court: U.S. Court of Appeals (7^th Cir.)

Case: Stelian N. Marinov v. Eric H. Holder, Jr., Attorney General of the United States

Date: August 1, 2012

From: New York attorney Gary E. Rosenberg (immigration attorney and lawyer; serving Brooklyn and Queens) New York Immigration attorney

**************************************************

RELATED POSTS:

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM FAILS DUE TO NO "DUE DILIGENCE," NO "PREJUDICE"; OVERSTAYING FILIPINO CAN'T FIGHT REMOVAL

INEFFECTIVE COUNSEL CLAIM DENIED WHERE ATTORNEY REPRESENTED MEXICAN FOR LABOR CERT & VISA APPLICATION BEFORE START OF REMOVAL PROCEEDING

IMMIGRATION JUDGE MUST GRANT GUATEMALAN TIME TO PROVIDE A FAIR OPPORTUNITY FOR THE RESPONDENT TO SEEK, SPEAK WITH, AND RETAIN LAWYER

**************************************************

Facts: Bulgarian Stelian Marinov, came to the U.S. in May, 2005, and altered his nonimigrant status to visitor from exchange visitor. Then he overstayed.

Marinov sought asylum and the Department of Homeland Security charged him with removability. The immigration judge notified his attorney of a hearing in August, 2010.

Marinov's lawyer appeared at the hearing; he did not. The immigration judge found no excuse for Marinov's failure to appear, and made an order of removal against him.

Marinov hired a new attorney and asked the immigration judge to give him a hearing based on exceptional circumstances and lack of notice. He claimed not to have received notice of the immigration hearing - although his prior attorney had. He argued that the attorney had misstated to the immigration judge the reason for his absence and that he hadn't been notified of the immigration hearing until the day before and that he lived too far away to attend the hearing on such short notice. Thus he also argued that his prior attorney provided "ineffective assistance of counsel."

The immigration judge denied Marinov's request for a new hearing, and held that he had received proper notice, since his attorney had gotten notice by mail. Also, the immigration judge found that there was no showing made by Marinov of ineffective assistance of counsel.

Marinov next brought an appeal to the Board of Immigration Appeals, which denied his appeal.

Alien's argument: The Board of Immigration Appeals was mistaken in holding that he was informed of the August, 2010 hearing and in concluding that he failed to meet the test for ineffective assistance of counsel.

Holding of the Court of Appeals: The removal order was correct because the mailing of the notice to Marinov's prior attorney, by law, gives notice to the alien. The Board of Immigration Appeals acted properly in affirmng the immigration judge's denial of Marinov's request for a new hearing. His petition to the Court of Appeals is denied.

Recent Blog Posts

Unmarried Albanian Woman Who Feared Kidnapping and Forced Prostitution Not Part of a Protected Social Group

Mexican Can't Show 10 Years of Continuance Physical Presence Where He Voluntarily Departed, Despite Claim That He Wasn't Told His Rights

MEXICAN NEVER A LAWFUL PERMANENT RESIDENT (LPR), HAVING OBTAINED HIS STATUS BY A BIGAMOUS MARRIAGE; HE IS DEPORTABLE FOR DRUG CRIME

Angolan Member of FLEC Belonged to or Lent Material Support to a Terrorist Organization

Peruvian Convicted of Stalking Ex-Girlfriend is Removable

Pakistani Husband And Wife Denied Asylum Where Their Troubles Based On Breakup Of Their Earlier Marriages To Others And Not Political Reasons

RAPE OF CAMBODIAN NOT POLITICAL; NOT "PERSECUTION" FOR IMMIGRATION PURPOSES

No Asylum For Guatemalan Who Can't Show Fear Of Past Persecution Or Fear Of Future Persecution, Which Is Less Likely Due To Changed Country Conditions

Russian Convicted Of Felony Assault Was Convicted Of Particularly Serious Crime, Was A Danger To The Community, And Is Removable.

ETHIOPIAN ARMED ROBBER DID NOT "EXHAUST ISSUE" BEFORE BIA OF WHETHER CONVICTED OF "PARTICULARLY SERIOUS CRIME"; COURT LACKS JURISDICTION

SALVADORIAN GUILTY OF FELONY RESIDENTIAL BURGLARY COMMITTED "CRIME OF VIOLENCE," A "PARTICULARLY SERI­OUS CRIME"; WITHHOLDING OF REMOVAL DENIED

HIV-Positive Kenyan Denied Asylum; His Evidence Was Insufficient

Cambodian is Passive Member of Opposition Party, Doesn't Show Past Persecution or Fear of Future Persecution; Asylum Denied

Burglary of a Vehicle Under New Mexico Law is Aggravated Felony, Making Mexican LPR Removable

MEXICAN L.P.R. REMOVABLE AFTER CONVICTION FOR "ACCESSORY TO A FELONY" WHICH RELATES TO "OBSTRUCTION OF JUSTICE" AND IS "AGGRAVATED FELONY"

El Salvadoran's Opposition to Gang Doesn't Rise to a Protected Fear of Future Prosecution

Employer Did Not Advertise Job in Best Newspaper, Labor Certification Denied

Mauritanian Sergeant Who Stood Guard Outside Interrogations Where People Were Tortured Assisted in Torture and is Inadmissible

Mexican Who Made Two Misrepresentations to Immigration Authorities Is Still Admissible

Bulgarian Denied Request to Reopen Removal Hearing Based on Prior Attorney's Failure to Notify Him; No "Ineffective Assistance of Counsel" Court: U.S. Court of Appeals (7th Cir.) Case: Stelian N. Marinov v. Eric H. Holder, Jr., Attorney General of the

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM FAILS DUE TO NO "DUE DILIGENCE," NO "PREJUDICE"; OVERSTAYING FILIPINO CAN'T FIGHT REMOVAL

INEFFECTIVE COUNSEL CLAIM DENIED WHERE ATTORNEY REPRESENTED MEXICAN FOR LABOR CERT & VISA APPLICATION BEFORE START OF REMOVAL PROCEEDING

SALVADORIAN GUILTY OF FELONY RESIDENTIAL BURGLARY COMMITTED "CRIME OF VIOLENCE," A "PARTICULARLY SERIOUS CRIME"; WITHHOLDING OF REMOVAL DENIED