Federal Court Cases
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 that are binding precedents. These cases have had a tremendous impact on the way that immigration law is practiced.
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."
David K. S. Kim, Senior Associate of Bretz & Coven, LLP, litigated the case, which has been published as one of the top stories on 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 whether 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 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 who are 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, in order 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 in order to prevail under the Convention Against Torture, government officials do not need to have actual 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 whether 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. Since 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 who were 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 in order 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 that were 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 since 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--who are 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 as to whether 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 since 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 as to whether 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 due to 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 as to whether under the law at the time as to whether the court of appeals had jurisdiction to consider orders issued outside of 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.
