DUI – immigrationcourtside.com

🤯 WRONG AGAIN! — BIA Flubs Divisibility In 3rd Cir. — Pesikan v. Atty. Gen.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-on-divisibility-pesikan-v-atty-gen

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

“Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. … In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. … For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal.”

[Hats way off to appointed pro bono counsel Bruce Merenstein, Arleigh Helfer and Stephen Fogdall (argued)! Here is a link to the audio of the oral argument.]

Stephen A. Fogdall, Esquire

– Stephen A. Fogdall

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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These are important cases with high stakes! They deserve expert analysis from expert judges.

Eliminating unnecessary Circuit reversals and remands like this would also help address the backlog-building, due-process-denying phenomenon of “Aimless Docket Reshuffling” at EOIR. Avoidable mistakes at the “retail level” are systemically costly to our justice system in more ways than one!

And, remember, that for every EOIR mistake that gets “caught” by the Article IIIs, dozens of these injustices probably go uncorrected! Circuit review is a luxury that isn’t available to most individuals who lose at the BIA level. Even here, Mr. Pesikan would have had no chance at the Circuit except for court-appointed pro bono counsel Stephen A. Fogdall and his team at Dillworth & Paxon, LLP, another luxury unavailable to litigants at the EOIR level.

Moreover, even when Circuit review does take place, the inappropriately deferential standards established by Congress allow (or even require) some Circuit panels to merely sweep glaring injustices under the rug without grappling with the overall constitutional implications of this shoddy, due–process-denying system. Why on earth would “deference” be given or review restricted over the “gang that can’t shoot straight” at EOIR?”

Gang that couldn't shoot straight — Would you give “deference” to these guys?
Theatrical poster from Wikipedia

Congress and the Article III Courts appear unlikely to face up to the need for constitutionally-required reforms at EOIR in the near future. Therefore, as I pointed out yesterday, it’s critical that NDPA experts apply for judicial positions at EOIR to change the system for the better and save lives from “within.” https://immigrationcourtside.com/2023/09/27/🇺🇸⚖%EF%B8%8F🗽🧑⚖%EF%B8%8F👨🏾⚖%EF%B8%8F-attention-ndpa-better-courts-mean-a-better-america-fr/.

🇺🇸 Due Process Forever!

PWS

09-25-23

⚖️SUPREME UNANIMITY: Immigrant Loses On Collateral Challenge To Legally Incorrect Removal Order! — U.S. v. Palomar-Santiago

U.S. v. Palomar-Santiago, Sup Ct., 05-24-21

https://www.supremecourt.gov/opinions/20pdf/20-437_bqmc.pdf

Syllabus by Court Staff:

Syllabus

UNITED STATES v. PALOMAR-SANTIAGO CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 20–437. Argued April 27, 2021—Decided May 24, 2021

Respondent Palomar-Santiago, a Mexican national living in the United States, was convicted in California state court of felony DUI in 1988. At the time, lower courts understood that conviction to be an “aggravated felony” subjecting a noncitizen to removal from the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing before an immigration judge and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the United States and indicted on one count of unlawful reentry after removal. See §1326(a). The statute criminalizing unlawful reentry provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen first demonstrates that (1) “any administrative remedies that may have been available” were exhausted, (2) “the opportunity for judicial review” was lacking, and (3) “the entry of the order was fundamentally unfair.” §1326(d). Palomar-Santiago moved to dismiss the indictment on the ground that his prior removal order was invalid in light of the 2004 holding in Leocal v. Ashcroft, 543 U. S. 1, that felony DUI is not an aggravated felony. Following Ninth Circuit precedent, the District Court and Court of Appeals held that Palomar-Santiago was excused from proving the first two requirements of §1326(d) because his felony DUI conviction had not made him removable. The District Court granted the motion to dismiss, and the Ninth Circuit affirmed.

Held: Each of the statutory requirements of §1326(d) is mandatory. Pp. 5–8.

(a) The Ninth Circuit’s interpretation is incompatible with the text of §1326(d), which provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. Section 1326(d)’s first

2

UNITED STATES v. PALOMAR-SANTIAGO Syllabus

two requirements are not satisfied just because a noncitizen was re- moved for an offense that should not have rendered him removable. The substantive validity of a removal order is quite distinct from whether the noncitizen exhausted administrative remedies or was deprived of the opportunity for judicial review. P. 5.

(b) Palomar-Santiago’s counterarguments are unpersuasive. First, he contends that further administrative review of a removal order is not “available” for purposes of §1326(a) when a noncitizen will not recognize a substantive basis to challenge an immigration judge’s conclusion that a prior conviction renders the noncitizen removable. The immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error. Ross, 578 U. S. 632, distinguished.

Second, Palomar-Santiago contends that §1326(d)’s prerequisites do not apply when a defendant argues that a removal order was substantively invalid. There can be no “challenge” to or “collateral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid when entered. This position ignores the plain mean- ing of both “challenge” and “collateral attack.”

Lastly, Palomar-Santiago invokes the canon of constitutional avoidance. But this canon “has no application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494. Here, the text of §1326(d) unambiguously fore- closes Palomar-Santiago’s interpretation. Pp. 5–7.

813 Fed. Appx. 282, reversed and remanded.

SOTOMAYOR, J., delivered the opinion for a unanimous Court.

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The lesson here for advocates: Exhaust those administrative appeals and judicial review even when your case seems hopeless. Otherwise, your client will be barred from taking advantage of later changes in the case law. After the fact, a “mere showing of fundamental unfairness” is not sufficient! And, you could be charged with malpractice by recommending that appeals and judicial review be waived.

This ought to generate more clogging of the Federal Courts, particularly the way the BIA is deciding cases these days. But, it’s what the Supremes unanimously asked for, so we have to take them at their word!

Due Process Forever!

PWS

05-24-21

NIGHT SHIFT W/ TAL @ CNN – “CLARIFYING” THE UNCLEAR STATUS OF DACA IF CONGRESS PUNTS AGAIN – “It’s Complicated!” — PLUS “BONUS COVERAGE” OF OTHER IMMIGRATION “HOT NEWS” BY TAL & HER CNN COLLEAGUES!

“Intrepid 24-7-365” Immigration Reporter Tal Kopan and her wonderful CNN colleagues provide up to the minute coverage of the latest developments. Thanks, Tal, for all that you and your colleagues do!

Despite fight in Congress over immigration, the DACA deadline is up in the air

By Tal Kopan, CNN

When President Donald Trump ended the Deferred Action for Childhood Arrivals policy, he created a March 5 deadline for protections to end, designed to give Congress time to act to save the program.

But while lawmakers have continued to use the March 5 date as a target, court action and the realities of the program have made any deadline murky and unclear.

As a result, there currently is no date that the protections will actually run out for the roughly 700,000 DACA recipients, young undocumented immigrants who came to the US as children — but there remains a large amount of uncertainty about whether they could disappear at any time.

Trump himself mentioned the March 5 deadline in a tweet Monday.

“Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time. March 5th is rapidly approaching and the Dems seem not to care about DACA. Make a deal!”

The original plan proposed by Trump in September was that the Department of Homeland Security would phase out DACA by letting the two-year protections and work permits issued under the program expire without the option to renew them. But the administration allowed anyone with permits that expired before March 5 a one-month window to apply for a renewal, which would reset their two-year clock.

However, 20,000 of the 150,000 eligible to renew didn’t. They were either rejected, unable to pull together the paperwork and $500 fee, or unwilling to trust the government with their personal data and enroll again. Further complicating things, some of those rejections were later reopened after DHS acknowledged that thousands may have had their applications lost in the mail or delivered on time but rejected as late.

Then, in January, a federal court judge issued an order stopping the President’s plan to phase out DACA, and DHS has since resumed processing applications for renewals for all the recipients who had protections in September.

But the administration has also aggressively sought to have the judge’s ruling overturned by a higher court, including the Supreme Court, only adding uncertainty to the situation. If a court were to overturn the judge’s ruling, it could have several outcomes, including letting renewals processed in the interim stand, invalidating all of those renewals or even ending the whole program immediately.

More: http://www.cnn.com/2018/02/06/politics/daca-deadline-march/index.html

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McConnell holds all the cards on next week’s immigration debate, and he’s not tipping his hand

By Tal Kopan and Lauren Fox, CNN

In a week the Senate is supposed to debate and vote on major immigration legislation for the first time in years — and only one person might know what it will look like: Senate Majority Leader Mitch McConnell.

“That, you’d have to check with the leader on,” said Sen. Cory Gardner, R-Colorado, Monday about the process as he left a GOP Senate leadership meeting.

“You’ll have to ask him,” echoed fellow leadership member Sen. John Thune of South Dakota. “He’ll have to decide what he wants to do.”

“Sen. McConnell hasn’t announced his intention,” Majority Whip John Cornyn told reporters.

Lawmakers of both parties told reporters Monday repeatedly they had no idea what the legislation or the process they’d be voting on likely next week would look like.

McConnell promised to turn to immigration on the Senate floor after February 8, the next date that government funding runs out, if broad agreement couldn’t be reached in that time. The promise, which he made on the Senate floor, was instrumental in ending a brief government shutdown last month, with senators of both parties pointing to the pledge for a “fair” floor debate as a major breakthrough.

The reality is, though, that McConnell has a lot of discretion as to how such a vote could go — and as of now, he has not given many clues.

Even in a meeting with White House chief of staff John Kelly, Homeland Security Secretary Kirstjen Nielsen and White House legislative director Marc Short, a source said McConnell “wouldn’t indicate what he’s going to do.”

“Total poker face,” the administration official said. “He’s not going to tip his hand.”

But the group came for the meeting, the official said, to “make sure he hears from the administration.”

On Monday, lawmakers expressed hope that such a deal could come together before the Thursday funding deadline, but wouldn’t call it likely. That tees up a vote next week with an uncertain end.

“Probably if nothing is agreed on this week, which I would not be optimistic will happen, then Mitch’ll call up some bill next week and let everyone get their votes on their amendments and see where it goes,” Thune said. “My assumption is that in the end, something will pass. But I guess we’ll see.”

McConnell’s choices will be instrumental in deciding how the debate goes, lawmakers and experts say, and he has a number of options on how to proceed, from the base bill, to the amendment process.

“There’s a lot of different conversations that continue, I don’t think anyone has narrowed it down to one, two or even three paths at this point,” Gardner said.

Utah Sen. Orrin Hatch, the longest-serving GOP senator, was the only lawmaker who seemed to know how the debate would look.

“I have a pretty good sense. I’ve been through it a hundred times,” he said, laughing. Asked if that meant a mess, he added, still chuckling: “It’s always a mess.”

Plenty more: http://www.cnn.com/2018/02/05/politics/senate-immigration-debate-no-clarity/index.html

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Bonus story: Latest on the drunk driving crash that is shaping up to be a new flashpoint in the immigration debate:

http://www.cnn.com/2018/02/06/politics/colts-drunk-driving-crash-undocumented-immigrant/index.html

Trump: ‘Disgraceful that a person illegally in our country’ killed Colts player in crash

By Tal Kopan and Maegan Vazquez, CNN

Updated 9:43 AM ET, Tue February 6, 2018

Washington (CNN)President Donald Trump on Tuesday said that it was “disgraceful” that an NFL player was killed by a man who police believe is an undocumented immigrant in a suspected drunk driving accident over the weekend.

“So disgraceful that a person illegally in our country killed @Colts linebacker Edwin Jackson. This is just one of many such preventable tragedies. We must get the Dems to get tough on the Border, and with illegal immigration, FAST!” Trump tweeted.

Indianapolis Colts linebacker Edwin Jackson and another man were struck and killed in a suspected drunken driving accident early Sunday morning. Indiana State Police say the man they believe hit them is an undocumented immigrant who has been deported twice.

“My prayers and best wishes are with the family of Edwin Jackson, a wonderful young man whose life was so senselessly taken. @Colts,” Trump said in a second tweet Tuesday morning.

The crash occurred when Jackson and the other man were struck on the shoulder of Interstate 70 in Indianapolis.

Read the complete report from Tal and Meagan at the above link.

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There’s always something “shaking” in the “hot button” world of 21st Century Immigration.

PWS

02-06-18

NEW BIA PRECEDENT SAYS DUI “IS A SIGNIFICANT ADVERSE CONSIDERATION IN BOND PROCEEDINGS” & FINDING OF “DANGEROUSNESS” CAN’T BE “OFFSET” BY CLOSE FAMILY & COMMUNITY TIES IN THE U.S. – MATTER OF SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

3914–DUI-Bond

Matter of SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

BIA HEADNOTE:

“(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.”

BIA PANEL: Appellate Immigration Judges MALPHRUS, MULLANE, and GREER

OPINION BY: Judge Garry D. Malphrus

KEY QUOTE:

“The issue in this case is whether the respondent is a danger to the community, and family and community ties generally do not mitigate an alien’s dangerousness. While there may be a situation where a family member’s or other’s influence over a young respondent’s conduct could affect the likelihood that he would engage in future dangerous activity, this is not such a case. The respondent is an adult and has not shown how his family circumstances would mitigate his history of drinking and driving, except to explain that the most recent incident occurred on the anniversary of his mother’s death. The factors that the respondent claims mitigate or negate his dangerousness existed prior to his most recent arrest, and they did not deter his conduct.

We recognize that the Immigration Judge set a significant bond of $25,000, which he said “reflects the seriousness with which this court views the respondent’s repeated conduct.” However, an Immigration Judge should only set a monetary bond if the respondent first establishes that he is not a danger to the community. Matter of Urena, 25 I&N Dec. at 141.

This is not a case involving a single conviction for driving under the influence from 10 years ago. The respondent has multiple convictions for driving under the influence from that period and a recent arrest for the same conduct, which undermines his claim that he has been rehabilitated. Under these circumstances, we are unpersuaded that the respondent has met his burden to show that that he is not a danger to the community. See Matter of Fatahi, 26 I&N Dec. at 793−94. We therefore conclude that he is not eligible for bond. Accordingly, the DHS’s appeal will be sustained, the Immigration Judge’s decision will be vacated, and the respondent will be ordered detained without bond.”

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As an Immigration Judge, I would have come out the same way the BIA did on this case. I would not have set bond.

For me, that the respondent was arrested again for DUI, ten years after his last of three previous DUI convictions, is telling. It shows me that the problem is a continuing one that has not been solved by passage of time or counseling, that the respondent still hasn’t “gotten the picture” about the dangers of DUI, and, significantly, that I couldn’t trust him not to DUI again or get in some other trouble while out on bond.

Less face it, stressful and traumatic events are a constant occurrence in life, particularly for someone already in Removal Proceedings. Therefore, I wouldn’t “buy” the respondent’s argument that the anniversary of his mother’s death was a “one-timer” that wouldn’t happen again.

What if he loses his job, what if a family member has a medical emergency, what if he has domestic problems — all of these fairly common traumas in our community. Why won’t he react the same way he did to the one-year anniversary of his mother’s death? Also, having a LPR wife, USC daughter, and a possible avenue for legal immigration didn’t seem to “motivate” him to say away from trouble. If he DUIs again while awaiting hearing, it’s on my hands. No thanks.

No, I’d rather have a full hearing on this respondent in detention where I know here won’t get into any more trouble in the meantime. If, after that hearing he qualifies for some relief and the equities outweigh the adverse factors, then so be it. I’d grant the case. But, I wouldn’t trust this guy out on the street on my bond during the several years it might take to get to a case such as this on the Arlington non-detained docket. “Getting to the bottom” of complicated cases like this is the purpose of the Individual Merits Hearings.

That said, if the pending DUI changes were dismissed or he were found “not guilty,” I’d be willing to “revisit” the bond.

So, what’s the danger with the BIA’s decision here. That it will be misread by the DHS or Immigration Judges for things the BIA didn’t hold:

The BIA did not say that bond could never be granted in a DUI case, even where there was a recent arrest;
The BIA also did not say that family and community support could never be a factor in assessing “dangerousness.” On the contrary, the BIA recognized that there could be situations where the influence of family or community members would be a proper factor for the Immigration Judge to consider in assessing dangerousness. For example, I found that having family members or co-workers who would drive the respondent to work and counseling as well as involvement in community or church-based alcohol avoidance groups were often strong predictors that individuals could avoid future alcohol-related problems. But, sadly, in this case, neither family nor past efforts at rehabilitation seem to have worked.

PWS

02-05-18

TAKE 5 MINUTES TO LOOK INSIDE THE “AMERICAN GULAG” OF CIVIL IMMIGRATION DETENTION BEING PROMOTED BY TRUMP, SESSIONS, KELLY & THE HOUSE GOP!

https://www.youtube.com/watch?v=3HeV1QSrEdo#action=share

Published on Jun 26, 2017

Learn about the history, laws, and unjust realities of the U.S. immigration detention system in this short 5-minute film. Narrated by Kristina Shull. Graphics and editing by Stephanie Busing. Script by Terry Ding and Rachel Levenson at NYU’s Immigrant Rights Clinic in collaboration with CIVIC. Learn more and at www.endisolation.org.

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Talk about fraud, waste, abuse, and corruption. And, amazingly, House Republicans are pushing for yet more mandatory detention, this time for those convicted of DUIs who have already completed punishment and are now subject to case-by-case determinations by U.S. Immigration Judges as to whether or not bond should be granted.

As an Immigration Judge, I denied bond in lots of cases with multiple DUIs, probably a substantial majority. But, each case was different, and there were some where the violations were well in the past, the individual had documented freedom from alcohol or substance abuse, and had strong U.S. equities, where bond was appropriate.

And since all cases depend on facts and proof, it’s important for the Judge to listen and be empowered to make the best decision for society and the individual under all the circumstances. “One size fits all” mandatory detention is an abuse of legislative authority and a waste of taxpayer money.

While to date it has not been found unconstitutional, I daresay that’s because the Supreme Court Justices who decide such matters have never had to experience the extreme dysfunction and inherent unfairness of the current immigration detention system on a daily basis like those of us who have served as trial judges. For that matter, they don’t completely understand the total dysfunction of our current Immigration Courts, and the systemic inability to deliver due process on a consistent basis throughout the nation. 600,000 pending cases! That dwarfs the rest of the Federal Judicial system.

Perhaps what it will take to change the system is for some of the Justices to have their son-in-law, daughter-in-law, or law clerk’s spouse more or less arbitrarily tossed into the world of immigration detention. Yes, folks, it’s not just recent border crossers, dishwashers, waitresses, and gardeners who end up in the “American Gulag” that so delights Jeff Sessions. “Professionals,” kids, pregnant women, and human beings from all walks of life, many with only minor violations or no criminal record at all, can end up there too.

PWS

06-28-17

OPERATION BOGO? — Many Of Those Arrested By DHS In Recent “Raids” Were NOT Serious Felons!

https://www.washingtonpost.com/local/social-issues/ice-data-shows-half-of-immigrants-arrested-in-raids-had-traffic-convictions-or-no-record/2017/04/28/81ff7284-2c59-11e7-b605-33413c691853_story.html?utm_term=.9b04937c5746

Maria Sacchetti and Ed O’Keefe report in the Washington Post:

“About half of the 675 immigrants picked up in roundups across the United States in the days after President Trump took office either had no criminal convictions or had committed traffic offenses, mostly drunken driving, as their most serious crimes, according to data obtained by The Washington Post.

Records provided by congressional aides Friday offered the most detailed look yet at the backgrounds of the individuals rounded up and targeted for deportation in early February by Immigration and Customs Enforcement agents assigned to regional offices in Los Angeles, Chicago, Atlanta, San Antonio and New York.

Two people had been convicted of homicide, 80 had been convicted of assault, and 57 had convictions for “dangerous drugs.” Many of the most serious criminals were given top billing in ICE news statements about the operation.

The largest single group — 163 immigrants convicted of traffic offenses — was mentioned only briefly. Over 90 percent of those cases involved drunken driving, ICE said Friday. Of those taken into custody in the raids, 177 had no criminal convictions at all, though 66 had charges pending, largely immigration or traffic offenses.

The raids were part of a nationwide immigration roundup dubbed Operation Cross Check, which accounts for a small portion of the 21,362 immigrants the Trump administration took into custody for deportation proceedings from January through mid-March.

The two-month total represents a 32 percent increase in deportation arrests over the same period last year. Most are criminals, administration officials have said. But 5,441 were not criminals, double the number of undocumented immigrants arrested for deportation a year earlier. The administration has released a detailed breakdown of the criminal records only of the raids in early February.”

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Seems like Trump, Sessions, Kelly & Co. have “embellished” or exaggerated both the threat posed by undocumented individuals and the the achievements of their “enhanced enforcement operations.” And, this is hardly the first time, nor is it likely to be the last.

That being said, as a former U.S. Immigration Judge, I wouldn’t necessarily give a “free pass” to those convicted of DUI. I agree with the commenter who indicated that a DUI far in the past, followed by an otherwise “clean” record would not ordinarily make someone a “danger to society.” But, multiple DUI convictions within the past several years would be a much different story.

Moreover, facts and circumstances are important. A DUI with others, particularly children, in the car, and/or a DUI that resulted in an an accident and injury to persons or property would be something more than a “mere traffic violation.”

Generally, I did not grant bond to individuals with recent multiple DUIs, and I almost never granted a second bond to an individual who had a DUI while out on bond.

PWS

04-29-17

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

Related posts:

Due Process Forever!

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“Intrepid 24-7-365” Immigration Reporter Tal Kopan and her wonderful CNN colleagues provide up to the minute coverage of the latest developments. Thanks, Tal, for all that you and your colleagues do!

Trump: ‘Disgraceful that a person illegally in our country’ killed Colts player in crash

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