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Federal Court Decisions

Federal Court Decisions

U.S. Immigration, Federal Cases, and the Supreme Court

At Bretz & Coven, LLP, we take pride in our work. Many of our cases have resulted in published decisions in federal courts and at the Board of Immigration Appeals binding precedents. These cases have had a tremendous impact on the way that immigration law is practiced.

Gonzales Bordonave v. Holder (2d. Cir. September 28, 2011)
The United States Court of Appeals for the Second Circuit held that the Board of Immigration Appeals erred in reversing the Immigration Judge’s grant of adjustment of status because it failed to consider hardship to Mr. Gonzales’s family if Mr. Gonzales were deported, a factor that the Immigration Judge had considered and which the Board has in extensive case law required be considered in adjustment of status cases. The Court held that given the closeness of this case, the BIA’s failure to consider and weigh this factor of hardship constituted “fact-finding which is flawed by an error of law,” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009) and that by omitting mention of this important factor, the BIA erred in applying the incorrect standard of review to the Immigration Judge’s finding. This is a big win because the Court found it had jurisdiction to consider the petition for review even though it was an appeal of the Board’s discretionary decision reversing the Immigration Judge. This decision is also persuasive authority that the Board must consider all factors examined by an Immigration Judge in granting a discretionary relief application that the Board has, in its precedent decisions, required to be considered. Moreover, this case helps establish that the Board must follow its own precedent and use the correct standard of review even in cases involving sex-related convictions, such as misdemeanor sexual misconduct as in this case.

Andrews v. United States Attorney General (3d. Cir. April 15, 2011)
The United States Court of Appeals for the Third Circuit ("Third Circuit") vacated the decision of the Board of Immigration Appeals ("BIA") regarding Roseline Andrews. The Third Circuit remanded the case to the BIA based on its findings that (1) Roseline Andrews diligently had  pursued her claims, (2) her former attorneys' representation was deficient, and (3) she probably would have been eligible to apply for cancellation of removal during the proceedings that resulted in her removal order, were it not for the deficient performance of counsel.

Roseline Andrews is a citizen of Nigeria. In August 1996, she was admitted as a visitor to the United States. She remained in the United States. In January 2000, she adjusted to lawful permanent resident status. In April 2003, Ms. Andrews tried unsuccessfully to bring a cousin from Nigeria into the United States by using her daughter's passport as the cousin's identification document. As a result, she was (a) charged with attempting to smuggle an alien into the United States and (b) placed in removal proceedings.

On October 21, 2004, Immigration Judge Garcy denied Ms. Andrews' application for a waiver under Section 212(d) (11) of the Immigration and Nationality Act and ordered her removed. This decision came three months before Ms. Andrews would have accrued the five years of LPR status required for eligibility for cancellation of removal. On the advice of the attorney who represented her during those proceedings, an appeal was not filed. Instead, the attorney promised to file an application for humanitarian relief. Subsequently, the attorney seldom responded to her efforts to contact him and falsely claimed he had filed an application for humanitarian relief.

At the end of 2005, Ms. Andrews consulted a second attorney. He recommended filing a hardship waiver and promised to get her case reopened. After accepting a retainer payment, he did virtually nothing on her case. Finally, in January 2007, he simply refunded her money.

Ms. Andrews next consulted Bretz & Coven, LLP. In April 2007, we filed a motion to reopen with Immigration Judge Garcy. We argued that Ms. Andrews' first lawyer ineffectively represented her by failing to advise her about cancellation of removal, which is a form of relief for which she would have accrued the required five years of lawful permanent resident status within just months. We asserted that the attorney should have helped her to meet this requirement by (1) requesting a continuance and (2) filing an appeal with the Board of Immigration Appeals, and requesting a remand when Ms. Andrews fulfilled the five-year LPR status requirement. However, the Immigration Judge ("IJ") denied the motion to reopen for the following reasons: The IJ asserted there was no evidence of ineffective assistance of counsel by either of Ms. Andrew's two prior lawyers. The IJ (erroneously) cited the "stop-time" rule in stating that the serving of the notice to appear in 2003 rendered our client ineligible for cancellation of removal. The IJ found that Ms. Andrews did not prove her first attorney had acted contrary to her instructions and expectations by failing to file an appeal. Finally, the IJ found the motion to reopen to be untimely, and that equitable tolling was not justifiable.

In lieu of filing an appeal, we filed a motion for reconsideration in June 2007. We argued that the "stop-time" rule applies to continuous presence or physical presence and does not apply to the five-year lawful permanent residency requirement under INA 240(A)(a)(1). We highlighted that the Third Circuit favorably views the tolling of the filing deadlines in cases in which there is fraud and ineffective assistance of counsel. However, the IJ denied the motion for reconsideration in a decision dated November 9, 2007. The IJ asserted again that Ms. Andrews was ineligible for cancellation of removal because she had not met the five years of permanent residency requirement. Also the IJ found that Ms. Andrews had no grounds to seek equitable tolling of the filing deadline for reopening because she had failed to act with due diligence in pursuing her claims.

We appealed the denial of the motion for reconsideration to the BIA. We argued that Ms. Andrews met the due diligence requirement for equitable tolling. We also contended that because the "stop time" rule does not apply to the accrual of permanent residence, she would have been eligible for cancellation of removal were it not for the deficient performance of counsel. However, in a decision dated, February 24, 2010, the BIA dismissed the appeal. It found that Ms. Andrews had not met her burden of proof regarding due diligence. It found that even if the IJ had misapplied the "stop-time" rule, Ms. Andrews had admitted she had not accrued five years of permanent residency, and therefore cannot show that her former attorneys were deficient in failing to prove her eligibility for cancellation of removal. We filed a Petition for Review with the Third Circuit.

In an opinion issued on April 15, 2011, the Third Circuit observed that the motion to reopen, which was denied by IJ Garcy, was not filed within 90 days after the date of the final administrative order of removal. The opinion notes that "the time limit for filing a motion to reopen is subject to equitable tolling. Borges v. Gonzales, 402 F.3d, 406 (3d Cir. 2005). Ineffective assistance of counsel can provide a basis for equitable tolling of the time to file a motion to reopen. Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). If ineffectiveness is substantiated, a petitioner must also demonstrate that she diligently pursued her claims. Id. At 252." The Third Circuit held that Ms. Andrews had acted reasonably and diligently in relying on her first lawyer's "representations and assurances" regarding the decision not to file an appeal and the promise to file a petition for humanitarian relief. Her consulting and hiring of a second lawyer due to a lack of results from the first lawyer further supports this finding. The Third Circuit found that if the first attorney had filed an appeal with the BIA, it is probable that Ms. Andrews would have accrued five years of lawful permanent residence during the pendency of the appeal and that she therefore would have been eligible to apply for cancellation of removal. Based on her first lawyer's (a) failure to apply for humanitarian relief, (b) avoidance of contact with her, and (c) misrepresentations when he did speak with her, the Third Circuit found his performance to be clearly deficient. Consequently, the Third Circuit vacated the BIA's decision and remanded the matter to the BIA for consideration of if Ms. Andrews was prejudiced by her attorneys' ineffectiveness.

 

Accardo v. United States Attorney General, 2011 U.S. App. LEXIS 4962 (11th Cir. March 10, 2011)
The United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit") held that Agostino Accardo's conviction for extortionate extension of credit under 18 U.S.C. § 892(a) is not categorically a crime of violence. In making that holding, the Eleventh Circuit disagreed with the conclusion of the Board of Immigration Appeals that Mr. Accardo's conviction was a crime of violence within the meaning of an aggravated felony making him subject to removal under the Immigration and Nationality Act.

Mr. Accardo is a native and citizen of Italy. He immigrated to the United States as a lawful permanent resident in 1976, when he was only one year of age. In February 2007, he pleaded guilty to violating 18 U.S.C. § 892(a) for making an extortionate extension of credit in the United States District Court, Eastern District of new York. Extortionate extension of credit is defined as "any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person 18 U.S.C. § 891(6). In his plea colloquy, Mr. Accardo admitted that failure to repay him could "result in the use of criminal means to cause harm to her reputation in the community."

The Department of Homeland Security (DHS) initiated removal proceedings, charging that Mr. Accardo was removable pursuant to INA § 237(a)(2)(A)(iii) as an alien who had been convicted of an aggravated felony, specifically, a "crime of violence" as defined by 18 U.S.C. § 16, which constitutes an "aggravated felony" under INA § 101(a)(43)(F). Under 18 U.S.C. § 16, the term "crime of violence" means: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

However, Immigration Judge Cassidy in Atlanta found that Mr. Accardo had not been convicted of a crime of violence because the convicting statute at issue, 18 U.S.C. 892(a), is a divisible statute in that it contains some offenses that would qualify as an aggravated felony and other offenses that would not. The IJ found that because Mr. Accardo only admitted to threatening to harm a person's reputation and not making a threat to harm a person or property, he was not convicted of a crime of violence under 18 U.S.C. § 16.

The DHS appealed, and the BIA sustained the appeal and reinstated the removal proceedings. It applied the categorical approach, even though the DHS, the IJ and Mr. Accardo had agreed that the modified categorical approach should be used. The Board concluded that § 892(a) was categorically a crime of violence under both 18 U.S.C. § 16(a) and (b), and it remanded the case to the IJ. On remand, the IJ issued an order of removal. Mr. Accardo again appealed to the Board, which declined to review its earlier decision and dismissed his appeal from the order of removal. Mr. Accardo filed a petition for review with the court of appeals for the Eleventh Circuit.

On appeal, the Eleventh Circuit agreed with Mr. Accardo that 18 U.S.C. § 892(a) covers offenses that do not constitute crimes of violence under either § 16(a) or § 16(b) and therefore that the Board erred in applying the categorical approach. Regarding 18 U.S.C. § 16(a), the Court found that the decisions from other circuits construing the phrase "other criminal means," that the BIA relied on, did not involve potential harm to a debtor's reputation as a consequence of noncompliance. Thus, it is possible to violate that statutory provision by an understanding that failure to comply with the terms of an extortionate loan could result in harm to the reputation of the debtor through nonviolent but still extra-legal means. As to 18 U.S.C. § 16(b), the Court found that 18 U.S.C. § 892(a) does not invariably "by its nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" because every violation of the subsection does not involve the risk that the use of physical force against another will be required.

The Eleventh Circuit held that a conviction for extortionate extension of credit under 18 U.S.C. § 892(a) is not categorically an aggravated felony as a crime of violence because it is divisible, encompassing some criminal behavior that falls within the definition of "aggravated felony" and some that does not. The Board of Immigration Appeals had completely bypassed a well-established rule in immigration law that if a criminal statute is divisible, the Board must apply the "modified categorical approach" rather than the "categorical approach." Moreover, the Board had relied on cases that failed to support its use of the categorical approach. The Eleventh Circuit reversed and remanded to the Board to apply the modified categorical approach and determine in the first instance whether Mr. Accardo was actually convicted of an aggravated felony under that approach.

 

Galluzzo v. Holder, 2011 U.S. App. LEXIS 1566 (2d. Cir. N.Y. Jan. 26, 2011)
The United States Court of Appeals for the Second Circuit held that Giorgio Galluzzo's constitutional right to due process was violated. Specifically, the Second Circuit held that a Visa Waiver Program ("VWP") entrant has a constitutional right to a hearing absent waiver of that right and that absent proof of such waiver, it is a violation of due process rights to deport a VWP entrant without a hearing. This was a major victory for VWP entrants ordered deported without a hearing.

Mr. Giorgio was admitted to the United States under the Visa Waiver Program on April 12, 1995. This program permits citizens of certain countries to enter and stay in the United States for up to 90 days without requiring a visa. Mr. Galluzzo remained in the United States well beyond 90 days. In 1998, he sought to adjust his status. Toward that end, his employer filed an application for employment certification for him that was approved by the Department of Labor. The employer filed Form I-140 Immigrant Petition for Alien Worker for him that was approved by the Immigration and Naturalization Service (INS) in 2001. Next, Mr. Galluzzo filed Form I-485 Application to Register Permanent Residence or Adjust Status in 2002.

On November 25, 2008, Mr. Galluzzo went to what was ostensibly a second interview on his adjustment application. However, he was informed at this appointment that his adjustment of status application had been denied on May 24, 2007. Mr. Galluzzo was served with a removal order without a hearing on the ground that he had waived any right to a removal hearing when he entered the United States under the Visa Waiver Program. He was immediately detained by Immigration and Customs Enforcement ("ICE").

In 2009, we filed a petition for review of the removal order in the U.S. Court of Appeals for the Second Circuit. We argued that Mr. Galluzzo is eligible to adjust his immigration status and that he had not waived his right to a removal hearing. On January 26, 2011, The Court found the record silent as to whether Mr. Galluzzo waived his right because the Government had not submitted a Form I-94W Departure Record signed by Mr. Galluzzo. The Second Circuit declined to adopt the presumption that status as a VWP entrant alone is de facto proof of waiver of a right to contest removal and held that it would not "presume away an evidentiary problem of the Government's own making." The case was remanded to determine prejudice, including if Mr. Galluzzo is eligible for adjustment of status.

 

Shi Jie Ge v. Holder, --- F.3d ----, 2009 WL 4281472 (2d Cir. 2009)
Bretz & Coven, LLP, won a landmark asylum case before the United States Court of Appeals for the Second Circuit on December 3, 2009, which involved important legal issues that could affect asylum law nationwide. The case involved a Chinese asylum applicant who claimed future persecution based on his political activities in the United States as a member of Chinese Democratic Party (CDP), which has members worldwide and advocates for democracy and has been critical of human rights abuse by the Chinese government through various political activities such as clandestine recruiting of members, publication of articles online criticizing the Chinese government, and demonstrations in front of Chinese Consulate in New York City. At the direction of CDP, Mr. Ge did not make his political activities public until several years after he jointed CDP. The Immigration Judge denied his asylum application on the ground that he failed to file his asylum application within one year upon arriving in the United States and failed to establish that he has a changed circumstance exception to the one-year deadline because he did not file his asylum application within one year of joining the CDP and that assuming the application had been timely filed or an exception to the deadline is established Mr. Ge’s claim was without merit because he failed to submit evidence showing that the Chinese government was aware of his political activities in the United States. The Board of Immigration Appeals dismissed appeal, affirming the Immigration Judge's decision. Second Circuit reversed, finding that the Immigration Judge and the Board clearly erred in interpreting the regulatory definition "changed circumstances" exception to the one-year filing deadline for asylum because the changed circumstance occurs upon making the political activity public, not upon joining membership of a political group. The Second Circuit also reversed the Board’s finding that Mr. Ge failed to establish future persecution because Mr. Ge is not required to prove that the Chinese government knew about his political activities but that the Chinese government would likely become aware of his political membership and activities upon his return to China. The Second Circuit vacated the BIA's decision and remanded with instructions to provide Mr. Ge an opportunity to submit any additional evidence "as to the Chinese government's likely future awareness of his involvement with the CDP."

This case was published as one of the top stories in New York Law Journal's December 4, 2009, Issue.

Garcia-Padron v. Holder, 558 F.3d 196 (2d Cir. 2009)
An Immigration Judge and the Board of Immigration Appeals held that Mr. Garcia-Padron was not eligible for a waiver pursuant to INA § 212(c) because he was subject to the limitations placed on INA § 212(c) created by the Anti-Terrorism and Effective Death Penalty Act due to his conviction in 1998.  However, Mr. Garcia-Padron had been placed in deportation proceedings prior to April 24, 1996, the effective date of the Anti-Terrorism and Effective Death Penalty Act.  The Second Circuit held that because Mr. Garcia-Padron had been placed in deportation proceedings prior to the effective date of the Anti-Terrorism and Effective Death Penalty Act that statute could not be used to bar Mr. Garcia from receiving a waiver pursuant to INA § 212(c).

Samuels v. Chertoff, 550 F.3d 252 (2d Cir. 2008)
Mr. Samuels sought adjustment of status and a waiver pursuant to INA § 212(h).  The Board of Immigration Appeals found that because he had been convicted of a violent offense, he was subject to the heightened standards of 8 C.F.R. § 1212.7(d), in determining whether or not to grant the waiver pursuant to section 212(h).  In ordering Mr. Samuels removed, the Board found that Mr. Samuels failed to demonstrate “exceptional and extremely unusual hardship” to his family.  The Second Circuit held that the Board misapplied 8 C.F.R. § 1212.7(d) by only considering whether he demonstrated “exceptional and extremely unusual hardship” to his family.  The Second Circuit held that the plain language of 8 C.F.R. § 1212.7(d) encompassed many factors in considering whether or not to grant the waiver.

Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008)
The Second Circuit held that Mr. Martinez’s two misdemeanor convictions for the sale of marijuana could not be treated as aggravated felonies under the INA.  Had his convictions been deemed to be aggravated felonies, he would have been ineligible for any relief from removal.  As a result of this decision, Mr. Martinez was granted a hearing to determine if he should be permitted to remain in the United States.

Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008)
Ms. Sharkey filed an action against the U.S.C.I.S. in the U.S. District Court for the Southern District of New York alleging that her permanent resident status had been unlawfully rescinded without following the proper statutory and regulatory procedures and that the U.S. C.I.S. was required to provide her with proof of her resident status.  After obtaining her permanent resident status, an officer for the U.S.C.I.S. crossed out the stamp in her passport granting her residency.  The District Court dismissed her complaint for lack of jurisdiction.  On appeal, the Second Circuit held that her complaint stated a valid cause of action and remanded the matter to the District Court.  Subsequently, the U.S.C.I.S. conceded that Ms. Sharkey was a permanent resident.

Walcott v. Chertoff, 517 F.3d 149 (2d Cir. 2008)
This was the third of Bretz & Coven, LLP’s INA § 212(c) retroactivity cases for permanent residents with convictions obtained by trial prior to April 24, 1996.  This decision held that a permanent resident who went to trial and filed an appeal fell within the ambit of Restrepo and Wilson, which Bretz & Coven, LLP also litigated.

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007)
Bretz & Coven, LLP, was among several law firms that succeeded in compelling the Second Circuit to overturn the Board of Immigration Appeals’ precedent decisions in Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005), and Matter of Brieva, 23 I. & N. Dec. 766 (BIA 2005).  This decision is remarkable not only because the Second Circuit overturned two precedent decisions of the Board, but also because prior to this decision, the First, Seventh, and Ninth circuits had all upheld Matter of Blake and Matter of Brieva.  This ground-breaking decision created a circuit split among the courts of appeals regarding eligibility for relief pursuant to INA § 212(c).  This decision expands the scope of aliens eligible for INA § 212(c) relief.  This decision was criticized by conservative bloggers who want all criminal aliens deported without any opportunity to apply for waivers to remain in the United States.

Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006)
This was the second of Bretz & Coven, LLP’s INA § 212(c) retroactivity cases for permanent residents with convictions obtained by trial prior to April 24, 1996.  This decision held that permanent residents who went to trial must make an individualized showing of reliance on the availability of INA § 212(c) relief, to be eligible for INA § 212(c) relief.

United States v. Lopez, 445 F.3d 90 (2d Cir. 2006)
This was a criminal case involving a conviction for reentry after deportation.  The Second Circuit vacated Mr. Lopez’s conviction because when he was in deportation proceedings, the Immigration Judge and the Board of Immigration Appeals deprived him of the right to apply for a waiver pursuant to INA § 212(c).

Matter of Zmijewska, 24 I. & N. Dec. 87 (BIA 2007)
Ms. Zmijewska was granted voluntary departure by the Board of Immigration Appeals in a decision that was mailed to her previous representative but not to her personally.  She did not depart as required because her previous representative failed to inform her of the deadline to depart.  After learning that she lost her case and missed the deadline to depart, she filed a motion to reopen that sought to apply for adjustment of status.  The Board of Immigration Appeals denied her motion to reopen removal proceedings because she failed to depart pursuant to the order of voluntary departure.  Bretz & Coven, LLP successfully appealed the denial to the Second Circuit Court of Appeals and on remand, the Board of Immigration Appeals considered the meaning of “fails voluntarily to depart” within INA §  240(B)(d).  The Board held that an alien has not voluntarily failed to depart when, through no fault of her own, she was unaware of the grant of voluntary departure until after the period for departure has expired.  Accordingly, Ms. Zmijewska did not voluntarily fail to depart and her motion to reopen was granted.

Zmijewska v. Gonzales, 426 F.3d 99 (2d Cir. 2005)
This case appealed the Board’s decision in Matter of Zmijewska, 24 I. & N. Dec. 87 (BIA 2007).  Ms. Zmijewska challenged the Board’s denial of her motion to reopen.  Her motion to reopen had been denied because she had been granted voluntary departure, but failed to depart.  Ms. Zmijewska claimed that she had exceptional circumstances for not departing, so that she should not be subjected to any penalties for her failure to depart.  The Second Circuit remanded Ms. Zmijewska’s case to the Board of Immigration Appeals to interpret the meaning of “fails voluntarily to depart” within the section 240(B)(d) of the INA.

Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005)
Bretz & Coven, LLP, filed a petition for review of a denial of Mr. Sepulveda’s motion to reopen for adjustment of status by the Board of Immigration Appeals.  The Government filed a motion to dismiss arguing that because adjustment of status is discretionary relief, the Second Circuit did not have jurisdiction because the INA does not permit review of discretionary matters.  The Second Circuit denied the Government’s motion to dismiss because even though the ultimate relief that Mr. Sepulveda sought was discretionary, his challenges to the Board’s denial of his motion to reopen involved nondiscretionary determinations, such as questions of law.

Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. 2004)
Bretz & Coven, LLP, filed a habeas corpus petition for Mr. Zalawadia in the United States District Court for the Western District of Louisiana.  The District Court erroneously dismissed Mr. Zalawadia’s petition and denied his request for a stay of deportation.  Bretz & Coven, LLP, took his case all the way to the United States Supreme Court, where Mr. Zalawadia was found eligible for a waiver pursuant to INA § 212(c).  On remand to the Fifth Circuit, the government argued that because Mr. Zalawadia had been deported after his stay was denied, his case was rendered moot.  In a decision of first impression, the Fifth Circuit held that a petition for habeas corpus does not become moot if an alien is deported after the filing of the petition.  Subsequently, Mr. Zalawadia was paroled into the United States and granted a waiver pursuant to INA § 212(c).

Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004)
This was the first of Bretz & Coven, LLP’s INA § 212(c) retroactivity cases for permanent residents with convictions obtained by trial prior to April 24, 1996.  Before this decision, no court had ever held that a permanent resident who went to trial prior to April 24, 1996 could receive a waiver pursuant to INA § 212(c).

Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004)
This case is one of the quintessential federal court decisions on relief under the Convention Against Torture because of its discussion of what constitutes “acquiescence.”  The Second Circuit held that to prevail under the Convention against Torture, government officials do not need to have knowledge of the torture, but instead, relief is available where government officials turn a blind eye to torture.  The BIA held that because Mr. Khouzam was accused of a crime, his torture by the police to obtain a confession upon his return to Egypt would not constitute a violation of the Convention Against Torture.  The Second Circuit rejected the Board’s logic and reinstated the Immigration Judge’s prior grant of relief under the Convention Against Torture.

Ashley v. Ridge, 288 F.Supp.2d 662 (D.N.J. 2003)
After the attacks on 9/11, former Attorney General John Ashcroft promulgated a regulation that permitted the government to obtain a stay of an Immigration Judge’s order to release an alien on bond by merely filing a form with the Board of Immigration Appeals.  As a result, an alien ordered released on bond could be detained indefinitely until the bond appeal could be resolved. The initial regulation was created to detain suspected terrorists, but over time it was expanded to include non-terrorist aliens like Mr. Ashley.  After Bretz & Coven, LLP, filed a habeas corpus petition for Mr. Ashley, a District Court Judge declared former Attorney General Ashcroft’s regulation unconstitutional and ordered Mr. Ashley’s release from custody.

Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003)
This case involved determining what type of offense constitutes a crime of violence, so as to render an alien removable as an aggravated felon.  This decision is cited regularly by the Second Circuit whenever it must determine if an offense is an aggravated felony.  The Second Circuit held that a conviction for manslaughter in the second degree under NY Penal Law § 125.15(1) was not a crime of violence.  Utilizing the categorical approach, the Second Circuit concluded that manslaughter in the second degree could be committed through an omission.  Because it was possible to commit manslaughter in the second degree without an act of violence, the Second Circuit deemed that it was not an aggravated felony.

Calcano-Martinez v. INS,  533 U.S. 348 (2001)
This case concerned petitioners lawful permanent residents subject to administratively final removal orders because they were convicted of aggravated felonies. Each filed a petition for review in the Second Circuit pursuant to 8 U.S.C. § 1252(a)(1) and a habeas corpus petition in the District Court pursuant to 28 U.S.C. § 2241 to challenge the Board of Immigration Appeals’ determination that as a matter of law, they were ineligible to apply for a discretionary waiver of deportation under former § 212(c) of the Immigration and Nationality Act. The Supreme Court held that IIRIRA expressly precluded the court of appeals from exercising jurisdiction to review a final removal order, but that petitioners may pursue their claims in a habeas corpus action pursuant to 28 U.S.C. § 2241 because Congress has not spoken with sufficient clarity to strip the district courts of jurisdiction to hear habeas petitions raising identical claims raised in the court of appeals.

Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000)
This ground-breaking decision was among one of the first court of appeals decisions to recognize that the deadline for filing motions to reopen could be tolled due to ineffective assistance of counsel.  


Pena-Rosario v. Reno, 83 F.Supp.2d 349 (E.D.N.Y. 2000)
Bretz & Coven, LLP filed habeas corpus petitions for multiple petitioners in the United States District Court for the Eastern District of New York.  Bretz & Coven, LLP successfully argued that statutory changes from 1996 rendering certain convicted felons ineligible for discretionary waivers of deportation under INA § 212(c) did not apply to them because their criminal conduct took place before enactment of those statutes.

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998)
This case had two important holdings. The first was that aliens convicted of specified criminal offenses--precluded by the AEDPA and the IIRIRA from seeking direct review of their deportation, exclusion, or removal orders in the courts of appeals--may file habeas petitions in the district courts pursuant to 28 U.S.C. § 2241. The second holding was that the provision of the AEDPA that limits the availability of INA § 212(c) waivers does not apply retroactively to aliens whose deportation or exclusion proceedings were pending on the date of its enactment. This case was an impetus for the Attorney General’s decision to promulgate regulations that apply the Henderson holding regarding 212(c) relief throughout the entire nation. The regulations can be found at 8 C.F.R. § 1212.3(g).

Mojica v. Reno, 970 F.Supp. 130 (E.D.N.Y. 1997)
This case was one of the first federal court decisions to hold that section 440(d) of the AEDPA, which bars legal permanent residents who have been convicted of certain crimes from seeking a discretionary waiver of deportation, may not be applied retroactively.  This decision was influential in such other 212(c) cases as Henderson v. INS, 157 F. 3d 106 (2d Cir. 1998), Pena-Rosario v. Reno, 83 F. Supp. 2d. 839 (E.D.N.Y. 2000); and St. Cyr. v. INS, 229 F.3d 406 (2d Cir. 2000).

St. John v. McElroy, 917 F. Supp. 243 (S.D.N.Y. 1996)
Ms. St. John, a returning lawful permanent resident, was detained by the INS pending a final determination by the Board of Immigration Appeals about if she could be excluded from the United States due to her drug conviction in Bermuda.  Bretz & Coven, LLP successfully represented her in claiming that she was not statutorily ineligible for parole because INA § 236(e) was unconstitutional as applied to the class of returning permanent resident aliens who retained due process rights despite their absence from the country.  Also Ms. St. John was successful in arguing that the procedures applied by the INS at her parole hearing were insufficient to satisfy Fifth Amendment due process requirements because she was not provided with an impartial adjudicator.

Dashto v. INS, 59 F.3d 697 (7th Cir. 1995)
The Board of Immigration Appeals found Mr. Dashto ineligible for discretionary relief from deportation because he purportedly had a conviction for a firearms offense that rendered him ineligible. The Court of Appeals found that Mr. Dashto was eligible for discretionary relief because the evidence was insufficient to establish a conviction for firearms possession because the certified statement of conviction was inconsistent with underlying criminal record.

Matter of Yeung, 16 I. & N. Dec. 370 (BIA 1977)
The Board of Immigration Appeals held that when an alien, in deportation proceedings, submits an application for preference status under INA § 203(a)(7) in conjunction with an application for adjustment of status under INA § 245, the decision about if the alien should be granted preference status is made by the District Director of the former Immigration and Naturalization Service, and the Immigration Judge acted improperly in denying the section 245 application before the alien had received written notification of the denial of his petition.

Cheng Fan Kwok v. INS, 392 U.S. 206 (1968)
The petitioner had a final order of deportation, but because of an exception in the law became eligible for adjustment of status.  The alien requested a stay of deportation pending his application for adjustment of status, but his request was denied by the INS.  He commenced proceedings in the Third Circuit Court of Appeals for a review of the denial and eventually appealed the case to the U.S. Supreme Court.  The Supreme Court accepted certiorari because a circuit split existed regarding if under the law at the time regarding if the court of appeals had jurisdiction to consider orders issued outside the alien’s deportation proceeding, such as the denial of the stay order.  The Supreme Court ultimately concluded that the court of appeals did not have jurisdiction.

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