Immigration Law has been changing- sometimes with a huge media coverage but more often, without much coverage because of the new changes’ limited application.
For example, when DACA and DAPA were announced, almost every single media channel has reported on those new laws. There have been, however, many more changes in immigration law mostly made by courts’ rulings. Those new laws apply to the cases that meet the specific situations required by those courts.
The 9th Circuit Court recently made a ruling in Lopez-Valencia v. Lynch, No. 12-73210 (9th Cir. Aug. 17, 2015).
One of Attorney Phillip Kim’s clients was waiting for her first court hearing in September 2015. The DHS was trying to deport her under the previous laws, which made her deportable.
One month before her Court Hearing, the 9th Circuit released a new case law. Attorney Phillip Kim filed a Motion To Terminate citing the new 9th Circuit case law among others such as Fregozo v. Holder, Descamps (by US Supreme Court), Lopez-Valencia (by US Supreme Court).
A few days before her first Court Hearing, the Judge from Immigration Court terminated her Deportation Proceedings.
Moreover, Attorney Phillip Kim contacted DHS ICE Chief Counsel’s office. The ICE Prosecuting Attorney agreed to return the Client’s Green Card because the Judge terminated proceedings.
Very fortunately and dramatically right before the first Court Hearing, the Client was able to receive her Green Card. She did not even have to appear in court.
Many of you have been waiting for an opportunity to get your case approved. Be hopeful and patient because Immigration Laws are changing in favor of immigrants.
The Ninth Circuit granted the petition for review and remanded, finding that a conviction under California’s theft statute is categorically not a theft offense, and thus not an aggravated felony, because the statute is both overbroad and indivisible, and such a conviction is not susceptible to the modified categorical approach pursuant to Descamps v. United States and Rendon v. Holder.
The court of appeals granted a petition for review of a decision of the Board of Immigration Appeals. The court held that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.
Lawful permanent resident Roberto Lopez-Valencia pleaded guilty to petty theft as defined in California Penal Code §§484 and 488 and was sentenced to probation. He later admitted violating his probation terms and was sentenced to state prison. After a subsequent conviction for being under the influence of a controlled substance, Lopez-Valencia was placed in removal proceedings.
The immigration judge (IJ) concluded that both of Lopez-Valencia’s convictions rendered him removable. The Board of Immigration Appeals (BIA) affirmed, concluding that Valencia’s theft conviction was an aggravated felony because it was a “theft offense” under 8 U.S.C. §1101(a)(43)(G). Lopez-Valencia petitioned for review.
The court of appeals granted the petition, holding that the BIA erred in affirming on the basis that Lopez-Valencia’s conviction was an aggravated felony because it was a “theft offense.”
The key issue was whether a conviction under California’s theft statute may qualify as an “aggravated felony” because it is a “theft offense” as defined by 8 U.S.C. §1101(a)(43)(G). Following the rule of (I)Descamps v. United States(I), 133 S. Ct. 2276 (2013), and its circuit progeny, the court held that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.
California’s theft statute is indivisible because the jury is not required to agree unanimously on how a defendant committed theft. The California Supreme Court and the state legislature have each, in their respective realms, made it clear that while all jurors must agree that the defendant engaged in some type of unlawful taking, they need not unanimously agree as to the way in which the unlawful taking was committed.
The court declared California’s theft statute overbroad and indivisible, with the result that the modified categorical approach did not apply.
The court rejected the government’s attempt to point to the charging documents in Lopez-Valencia’s case in support of a single theory of theft that the jury must have found. That factual approach had been abrogated in light of (I)Descamps(I). In addition, in a California theft prosecution there is no requirement that the charging documents spell out the defendant’s offense with any particularity.
Instead, the court declared that California’s overbroad and indivisible theft statute is not amenable to the modified categorical approach, and a conviction under it can never be a “theft offense” under §1101(a)(43)(G).
The following information is for people seeking protection from deportation. Proceedings take place in Immigration Court or before the Board of Immigration Appeals (BIA). In deportation proceedings, individuals can apply for protection and immigration benefits like:
• Adjustment to permanent resident status
• Cancellation of removal
• Waivers that allow admission into the U.S.
• Asylum or hold back deportation orders (if eligible)
If you are filing for protection, you need to submit certain applications and provide biometric and biographic information to USCIS. If you do not file these forms properly, your file will not be passed on to removal proceedings. These procedures are meant to ensure that background checks are completed before your file is examined for protection benefits.
Since April 1, 2005, benefits cannot be granted to individuals until background checks are completed.
If your application is accepted, the process is not over yet. You will be issued further instructions by the Immigration Court. You must follow these instructions to receive documentation and work authorization.
For more information about removal proceedings, contact Attorney Phillip Kim.
A discretionary benefit adjusting an alien’s status from that of deportable alien to one lawfully admitted for permanent residence. Application for cancellation of removal is made during the course of a hearing before an immigration judge. You might have a hearing scheduled in San Francisco or Los Angeles; however, your local lawyer from Fresno can help you. Contact an Immigration Deportation Defense Cancellation of Removal Attorney in Fresno today.
Immigration Benefits in EOIR Removal Proceedings
The information on this page only applies to individuals who are requesting, or who have been granted, relief from removal or protection while they are in removal proceedings in Immigration Court or before the Board of Immigration Appeals (BIA). Immigration courts and the BIA are part of the Executive Office for Immigration Review (EOIR) within the Department of Justice (DOJ). If eligible, individuals in removal proceedings can apply for various immigration benefits, which if granted, provide relief from removal, such as adjustment to permanent resident status, cancellation of removal, and certain waivers of inadmissibility. Eligible individuals may also seek asylum or withholding of removal, among other forms of protection relief.
If you are filing for relief or protection in immigration court, the government’s attorney will provide you with the pre-order Instructions for Submitting Certain Applications in Immigration Court and For Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services. You must follow these instructions carefully in order to have your application adjudicated during removal proceedings. As described in the joint Fact Sheet on immigration benefits in EOIR proceedings, the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Immigration and Customs Enforcement (ICE) implemented these procedures to ensure that the background and security checks required by the Department of Homeland Security (DHS) are completed before EOIR Immigration Judges or the BIA grant an individual relief from removal or protection benefits. EOIR regulations effective on April 1, 2005 prohibit Immigration Judges and the BIA from granting such benefits to an alien before DHS reports that the identity, background and security checks are complete. (See 70 Federal Register 4743 (January 31, 2005)(codified at 8 C.F.R. Parts 1003 and 1208).
If the Immigration Judge grants your application, you will be given the Post-Order Instructions for Individuals Granted Relief or Protection from Removal by Immigration Court at the conclusion of the removal proceedings. These post-order instructions describe the steps you should follow to obtain documentation of your immigration status and work authorization. If relief or protection is granted by the BIA, your BIA decision will contain similar instructions for obtaining your documentation.
Robert A. Katzmann, a federal judge, has used the prestige of his office to push for lawyers to do more volunteer work in the immigration court system.