Saturday, November 20, 2010

Stay of Removal Standard, Nken v. Holder

Chief Justice Roberts, Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

on writ of certiorari to the united states court ofappeals for the fourth circuit

[April 22, 2009]

    Chief Justice Roberts delivered the opinion of the Court.
    It takes time to decide a case on appeal. Sometimes a little; sometimes a lot. “No court can make time stand still” while it considers an appeal, Scripps-Howard Radio, Inc. v. FCC316 U. S. 49 (1942) , and if a court takes the time it needs, the court’s decision may in some cases come too late for the party seeking review. That is why it “has always been held, … that as part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal.” Id., at 9–10 (footnote omitted). A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it.
    This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.
    Jean Marc Nken, a citizen of Cameroon, entered the United States on a transit visa in April 2001. In December 2001, he applied for asylum under 8 U. S. C. §1158, withholding of removal under §1231(b)(3), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 3, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85, see 8 CFR §208.17 (2008). In his application, Nken claimed he had been persecuted in the past for participation in protests against the Cameroonian Government, and would be subject to further persecution if he returns to Cameroon.
    An Immigration Judge denied Nken relief after concluding that he was not credible. The Board of Immigration Appeals (BIA) affirmed, and also declined to remand for consideration of Nken’s application for adjustment of status based on his marriage to an American citizen. After the BIA denied a motion to reopen, Nken filed a petition for review of the BIA’s removal order in the Court of Appeals for the Fourth Circuit. His petition was denied. Nken then filed a second motion to reopen, which was also denied, followed by a second petition for review, which was denied as well.
    Nken filed a third motion to reopen, this time alleging that changed circumstances in Cameroon made his persecution more likely. The BIA denied the motion, finding that Nken had not presented sufficient facts or evidence of changed country conditions. Nken again sought review in the Court of Appeals, and also moved to stay his deportation pending resolution of his appeal. In his motion, Nken recognized that Fourth Circuit precedent required an alien seeking to stay a removal order to show by “clear and convincing evidence” that the order was “prohibited as a matter of law,” 8 U. S. C. §1252(f)(2). See Teshome-Gebreegziabher v.Mukasey, 528 F. 3d 330 (CA4 2008). Nken argued, however, that this standard did not govern. The Court of Appeals denied Nken’s motion without comment. App. 74.
    Nken then applied to this Court for a stay of removal pending adjudication of his petition for review, and asked in the alternative that we grant certiorari to resolve a split among the Courts of Appeals on what standard governs a request for such a stay. Compare Teshome-Gebreegziabhersupra, at 335, and Weng v. U. S. Attorney General, 287 F. 3d 1335 (CA11 2002), with Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003), Mohammed v. Reno, 309 F. 3d 95 (CA2 2002), Douglas v. Ashcroft, 374 F. 3d 230 (CA3 2004), Tesfamichael v. Gonzales, 411 F. 3d 169 (CA5 2005), Bejjani v. INS, 271 F. 3d 670 (CA6 2001), Hor v. Gonzales, 400 F. 3d 482 (CA7 2005), and Andreiu v. Ashcroft, 253 F. 3d 477 (CA9 2001) (en banc). We granted certiorari, and stayed petitioner’s removal pending further order of this Court. Nken v.Mukasey, 555 U. S. ___ (2008).
    The question we agreed to resolve stems from changes in judicial review of immigration procedures brought on by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, which substantially amended the Immigration and Nationality Act (INA), 8 U. S. C. §1101 et seq. When Congress passed IIRIRA, it “repealed the old judicial-review scheme set forth in [8 U. S. C.] §1105a and instituted a new (and significantly more restrictive) one in 8 U. S. C. §1252.” Reno v. American-Arab Anti-Discrimination Comm.525 U. S. 471475 (1999) (AAADC). The new review system substantially limited the availability of judicial review and streamlined all challenges to a removal order into a single proceeding: the petition for review. See, e.g.8 U. S. C. §1252(a)(2) (barring review of certain removal orders and exercises of executive discretion); §1252(b)(3)(C) (establishing strict filing and briefing deadlines for review proceedings); §1252(b)(9) (consolidating challenges into petition for review). Three changes effected by IIRIRA are of particular importance to this case.
    Before IIRIRA, courts of appeals lacked jurisdiction to review the deportation order of an alien who had already left the United States. See §1105a(c) (1994 ed.) (“An order of deportation or of exclusion shall not be reviewed by any court … if [the alien] has departed from the United States after the issuance of the order”). Accordingly, an alien who appealed a decision of the BIA was typically entitled to remain in the United States for the duration of judicial review. This was achieved through a provision providing most aliens with an automatic stay of their removal order while judicial review was pending. See §1105a(a)(3) (“The service of the petition for review … shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs”).
    IIRIRA inverted these provisions to allow for more prompt removal. First, Congress lifted the ban on adjudication of a petition for review once an alien has departed. See IIRIRA §306(b), 110Stat. 3009–612 (repealing §1105a). Second, because courts were no longer prohibited from proceeding with review once an alien departed, see Dada v. Mukasey554 U. S. 1 , ___ (2008) (slip op., at 19–20), Congress repealed the presumption of an automatic stay, and replaced it with the following: “Service of the petition on the officer or employee does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3)(B) (2006 ed.).
    Finally, IIRIRA restricted the availability of injunctive relief:
“Limit on injunctive relief
    “(1) In general
    “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
    “(2) Particular cases
    “Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f).
This provision, particularly subsection (f)(2), is the source of the parties’ disagreement.
    The parties agree that courts of appeals considering a petition for review of a removal order may prevent that order from taking effect and therefore block removal while adjudicating the petition. They disagree over the standard a court should apply in deciding whether to do so. Nken argues that the “traditional” standard for a stay applies. Under that standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill481 U. S. 770776(1987) .
    The Government disagrees, arguing that a stay is simply a form of injunction, or alternatively that the relief petitioner seeks is more accurately characterized as injunctive, and therefore that the limits on injunctive relief set forth in subsection (f)(2) apply. Under that provision, a court may not “enjoin” the removal of an alien subject to a final removal order, “unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” 8 U. S. C. §1252(f)(2). Mindful that statutory interpretation turns on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole,” Robinson v. Shell Oil Co.519 U. S. 337,341 (1997) , we conclude that the traditional stay factors—not §1252(f)(2)—govern a request for a stay pending judicial review.
    An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as “inherent,” preserved in the grant of authority to federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” All Writs Act, 28 U. S. C. §1651(a). See In re McKenzie180 U. S. 536551 (1901) . The Court highlighted the historic pedigree and importance of the power in Scripps-Howard316 U. S. 4 , holding in that case that Congress’s failure expressly to confer the authority in a statute allowing appellate review should not be taken as an implicit denial of that power.
    The Court in Scripps-Howard did not decide what “criteria … should govern the Court in exercising th[e] power” to grant a stay. Id., at 17. Nor did the Court consider under what circumstances Congress could deny that authority. See ibid. The power to grant a stay pending review, however, was described as part of a court’s “traditional equipment for the administration of justice.” Id., at 9–10. That authority was “firmly imbedded in our judicial system,” “consonant with the historic procedures of federal appellate courts,” and “a power as old as the judicial system of the nation.” Id., at 13, 17.
    The authority to hold an order in abeyance pending review allows an appellate court to act responsibly. A reviewing court must bring considered judgment to bear on the matter before it, but that cannot always be done quickly enough to afford relief to the party aggrieved by the order under review. The choice for a reviewing court should not be between justice on the fly or participation in what may be an “idle ceremony.” Id., at 10. The ability to grant interim relief is accordingly not simply “[a]n historic procedure for preserving rights during the pendency of an appeal,” id., at 15, but also a means of ensuring that appellate courts can responsibly fulfill their role in the judicial process.
    At the same time, a reviewing court may not resolve a conflict between considered review and effective relief by reflexively holding a final order in abeyance pending review. A stay is an “intrusion into the ordinary processes of administration and judicial review,” Virginia Petroleum Jobbers Assn. v. Federal Power Comm’n, 259 F. 2d 921, 925 (CADC 1958) (per curiam), and accordingly “is not a matter of right, even if irreparable injury might otherwise result to the appellant,” Virginian R. Co. v. United States272 U. S. 658672 (1926) . The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders that the legislature has made final.
    Subsection (f)(2) does not by its terms refer to “stays” but instead to the authority to “enjoin the removal of any alien.” The parties accordingly begin by disputing whether a stay is simply a type of injunction, covered by the term “enjoin,” or a different form of relief. An injunction and a stay have typically been understood to serve different purposes. The former is a means by which a court tells someone what to do or not to do. When a court employs “the extraordinary remedy of injunction,” Weinberger v. Romero-Barcelo456 U. S. 305312 (1982) , it directs the conduct of a party, and does so with the backing of its full coercive powers. See Black’s Law Dictionary 784 (6th ed. 1990) (defining “injunction” as “[a] court order prohibiting someone from doing some specified act or commanding someone to undo some wrong orinjury”).
    It is true that “ ‘[i]n a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam.’ ” Id., at 800 (8th ed. 2004) (quoting 1 H. Joyce, A Treatise on the Law Relating to Injunctions §1, pp. 2–3 (1909)). This is so whether the injunction is preliminary or final; in both contexts, the order is directed at someone, and governs that party’s conduct.
    By contrast, instead of directing the conduct of a particular actor, a stay operates upon the judicial proceeding itself. It does so either by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability. See Black’s, supra, at 1413 (6th ed. 1990) (defining “stay” as “a suspension of the case or some designated proceedings within it”).
    A stay pending appeal certainly has some functional overlap with an injunction, particularly a preliminary one. Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined. But a stay achieves this result by temporarily suspending the source of authority to act—the order or judgment in question—not by directing an actor’s conduct. A stay “simply suspend[s] judicial alteration of the status quo,” while injunctive relief “grants judicial intervention that has been withheld by lower courts.”Ohio Citizens for Responsible Energy, Inc. v. NRC479 U. S. 13121313 (1986) (Scalia, J., in chambers); see also Brown v. Gilmore533 U. S. 13011303 (2001) (Rehnquist, C. J., in chambers) (“[A]pplicants are seeking not merely a stay of a lower court judgment, but an injunction against the enforcement of a presumptively valid state statute”); Turner Broadcasting System, Inc. v. FCC507 U. S. 13011302 (1993) (same) (“By seeking an injunction, applicants request that I issue an order altering the legal status quo”).
    An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the Government, but rather for the temporary setting aside of the source of the Government’s authority to remove. Although such a stay acts to “ba[r] Executive branch officials from removing [the applicant] from the country,” post, at 7 (Alito, J., dissenting), it does so by returning to the status quo—the state of affairs before the removal order was entered.* That kind of stay, “relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction.” Gulfstream Aerospace Corp. v.Mayacamas Corp.485 U. S. 271279 (1988) ; see Fed. Rule App. Proc. 8(a)(1)(A) (referring to interim relief from “the judgment or order of a district court pending appeal” as “a stay”). Whether such a stay might technically be called an injunction is beside the point; that is not the label by which it is generally known. The sun may be a star, but “starry sky” does not refer to a bright summer day. The terminology of subsection (f)(2) does not comfortably cover stays.
    This conclusion is reinforced by the fact that when Congress wanted to refer to a stay pending adjudication of a petition for review in §1252, it used the word “stay.” In subsection (b)(3)(B), under the heading “Stay of order,” Congress provided that service of a petition for review “does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3)(B). By contrast, the language of subsection (f) says nothing about stays, but is instead titled “Limit on injunctive relief,” and refers to the authority of courts to “enjoin the removal of any alien.” §1252(f)(2).
     “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” INS v. Cardoza-Fonseca480 U. S. 421432(1987) (internal quotation marks omitted). This is particularly true here, where subsections (b)(3)(B) and (f)(2) were enacted as part of a unified overhaul of judicial review procedures.
    Subsection (b)(3)(B) changed the basic rules covering stays of removal, and would have been the natural place to locate an amendment to the traditional standard governing the grant of stays. Under the Government’s view, however, Congress placed such a provision four subsections later, in a subsection that makes no mention of stays, next to a provision prohibiting classwide injunctions against the operation of removal provisions. See 8 U. S. C. §1252(f)(1) (permitting injunctions only “with respect to the application of such provisions to an individual alien”); AAADC, 525 U. S., at 481–482. Although the dissent “would not read too much into Congress’ decision to locate such a provision in one subsection rather than in another,” post, at 8, the Court frequently takes Congress’s structural choices into consideration when interpreting statutory provisions. See, e.g.Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 13).
    The Government counters that petitioner’s view “fails to give any operative effect to Section 1252(f)(2).” Brief for Respondent 32. Initially, this argument undercuts the Government’s textual reading. It is one thing to propose that “enjoin” in subsection (f)(2) covers a broad spectrum of court orders and relief, including both stays and more typical injunctions. It is quite another to suggest that Congress used “enjoin” to refer exclusively to stays, so that a failure to include stays in subsection (f)(2) would render the provision superfluous.     If nothing else, the terms are by no means synonymous.
    Leaving that aside, there is something to the Government’s point; the exact role of subsection (f)(2) under petitioner’s view is not easy to explain. Congress may have been concerned about the possibility that courts would enjoin application of particular provisions of the INA, see 8 U. S. C. §1252(f)(1) (prohibiting injunctions “other than with respect to the application of [Section IV of the INA] to an individual alien”), or about injunctions that might be available under the limited habeas provisions of subsection (e). Or perhaps subsection (f)(2) was simply included as a catchall provision raising the bar on any availability (even unforeseeable availability) of “the extraordinary remedy of injunction.” Weinberger, 456 U. S., at 312. In any event, the Government’s point is not enough to outweigh the strong indications that subsection (f)(2) is not reasonably understood to be directed at stays.
    Applying the subsection (f)(2) standard to stays pending appeal would not fulfill the historic office of such a stay. The whole idea is to hold the matter under review in abeyance because the appellate court lacks sufficient time to decide the merits. Under the subsection (f)(2) standard, however, a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a standard—“clear and convincing evidence”—that does not so much preserve the availability of subsequent review as render it redundant. Subsection (f)(2), in short, would invert the customary role of a stay, requiring a definitive merits decision earlier rather than later.
    The authority to grant stays has historically been justified by the perceived need “to prevent irreparable injury to the parties or to the public” pending review. Scripps-Howard, 316 U. S., at 9. Subsection (f)(2) on its face, however, does not allow any consideration of harm, irreparable or otherwise, even harm that may deprive the movant of his right to petition for review of the removal order. Subsection (f)(2) does not resolve the dilemma stays historically addressed: what to do when there is insufficient time to resolve the merits and irreparable harm may result from delay. The provision instead requires deciding the merits under a higher standard, without regard to the prospect of irreparable harm.
    In short, applying the subsection (f)(2) standard in the stay context results in something that does not remotely look like a stay. Just like the Court in Scripps-Howard, we are loath to conclude that Congress would, “without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.” Id., at 11. Subsection (f)(2) would certainly deprive courts of their “customary” stay power. Our review does not convince us that Congress did that in subsection (f)(2). The four-factor test is the “traditional” one, Hilton, 481 U. S., at 777, and the Government has not overcome the “presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” Isbrandtsen Co. v. Johnson343 U. S. 779783 (1952) . We agree with petitioner that an alien need not satisfy the demanding standard of §1252(f)(2) when asking a court of appeals to stay removal pending judicial review.
    So what standard does govern? The question presented, as noted, offers the alternative of “ ‘the traditional test for stays,’ ” 555 U. S., at ___, but the parties dispute what that test is. See Brief for Respondent 46 (“[T]he four-part standard requires a more demanding showing than petitioner suggests”); Reply Brief for Petitioner 26 (“The Government argues … that the [stay] test should be reformulated”).
    “A stay is not a matter of right, even if irreparable injury might otherwise result.” Virginian R. Co., 272 U. S., at 672. It is instead “an exercise of judicial discretion,” and “[t]he propriety of its issue is dependent upon the circumstances of the particular case.” Id., at 672–673; seeHiltonsupra, at 777 (“[T]he traditional stay factors contemplate individualized judgments in each case”). The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion. See, e.g.Clinton v. Jones520 U. S. 681708 (1997) ;Landis v. North American Co.299 U. S. 248255 (1936) .
    The fact that the issuance of a stay is left to the court’s discretion “does not mean that no legal standard governs that discretion… . ‘[A] motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ ” Martin v. Franklin Capital Corp.546 U. S. 132139 (2005) (quoting United Statesv. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.)). As noted earlier, those legal principles have been distilled into consideration of four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hiltonsupra, at 776. There is substantial overlap between these and the factors governing preliminary injunctions, see Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14); not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.
    The first two factors of the traditional standard are the most critical. It is not enough that the chance of success on the merits be “better than negligible.” Sofinet v. INS, 188 F. 3d 703, 707 (CA7 1999) (internal quotation marks omitted). Even petitioner acknowledges that “[m]ore than a mere ‘possibility’ of relief is required.” Reply Brief for Petitioner 21 (quoting Brief for Respondent 47). By the same token, simply showing some “possibility of irreparable injury,”Abbassi v. INS, 143 F. 3d 513, 514 (CA9 1998), fails to satisfy the second factor. As the Court pointed out earlier this Term, the “ ‘possibility’ standard is too lenient.” Wintersupra, at ___ (slip op., at 12).
    Although removal is a serious burden for many aliens, it is not categorically irreparable, as some courts have said. See, e.g.Ofosu v. McElroy, 98 F. 3d 694, 699 (CA2 1996) (“[O]rdinarily, when a party seeks [a stay] pending appeal, it is deemed that exclusion is an irreparable harm”); see also Petitioner’s Emergency Motion for a Stay 12 (“[T]he equities particularly favor the alien facing deportation in immigration cases where failure to grant the stay would result in deportation before the alien has been able to obtain judicial review”).
    The automatic stay prior to IIRIRA reflected a recognition of the irreparable nature of harm from removal before decision on a petition for review, given that the petition abated upon removal. Congress’s decision in IIRIRA to allow continued prosecution of a petition after removal eliminated the reason for categorical stays, as reflected in the repeal of the automatic stay in subsection (b)(3)(B). It is accordingly plain that the burden of removal alone cannot constitute the requisite irreparable injury. Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. See Brief for Respondent 44.
    Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party. In considering them, courts must be mindful that the Government’s role as the respondent in every removal proceeding does not make the public interest in each individual one negligible, as some courts have concluded. See, e.g.,Mohammed, 309 F. 3d, at 102 (Government harm is nothing more than “one alien [being] permitted to remain while an appeal is decided”); Ofosusupra, at 699 (the Government “suffers no offsetting injury” in removal cases).
    Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm. But that is no basis for the blithe assertion of an “absence of any injury to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay 13. There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and “permit[s] and prolong[s] a continuing violation of United States law.” AAADC, 525 U. S., at 490. The interest in prompt removal may be heightened by the circumstances as well—if, for example, the alien is particularly dangerous, or has substantially prolonged his stay by abusing the processes provided to him. See ibid. (“Postponing justifiable deportation (in the hope that the alien’s status will change—by, for example, marriage to an American citizen—or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding”). A court asked to stay removal cannot simply assume that “[o]rdinarily, the balance of hardships will weigh heavily in the applicant’s favor.” Andreiu, 253 F. 3d, at 484.
*  *  *
    The Court of Appeals did not indicate what standard it applied in denying Nken a stay, but Circuit precedent required the application of §1252(f)(2). Because we have concluded that §1252(f)(2) does not govern, we vacate the judgment of the Court of Appeals and remand for consideration of Nken’s motion for a stay under the standards set forth in this opinion.
It is so ordered.


* The dissent maintains that “[a]n order preventing an executive officer from [enforcing a removal order] does not ‘simply suspend judicial alteration of the status quo,’ ” but instead “blocks executive officials from carrying out what they view as proper enforcement of the immigration laws.” Post, at 7 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 13121313 (1986) (Scalia, J., in chambers)). But the relief sought here would simply suspend administrative alteration of the status quo, and we have long recognized that such temporary relief from an administrative order—just like temporary relief from a court order—is considered a stay. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 410–11 (1942) . The dissent would distinguish Scripps-Howard on the ground that Nken does not really seek to stay a final order of removal, but instead seeks “to enjoin the Executive Branch from enforcing his removal order pending judicial review of an entirely separate order [denying a motion to reopen].” Post, at 4, n. But a determination that the BIA should have granted Nken’s motion to reopen would necessarily extinguish the finality of the removal order. See Tr. of Oral Arg. for Respondent 42 (“[I]f the motion to reopen is granted, that vacates the final order of removal and, therefore, there is no longer a final order of removal pursuant to which the alien could be removed”). The relief sought here is properly termed a “stay” because it suspends the effect of the removal order.

Tuesday, November 2, 2010

New Immigration Fees USCIS

New Application and Petition Fees Go Into Effect on Nov. 23, 2010

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) reminds customers that its new fee schedule goes into effect Nov. 23, 2010.  Applications or petitions postmarked or otherwise filed on or after this date must include the new fee, or they will be rejected.
USCIS published the new fee schedule in the Federal Register on Sept. 24, following a comprehensive review of public comments received after publication of the proposed rule this summer.
The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.
Final Rule: Schedule of Fees
The following schedule lists the adjusted fees that will take effect on November 23, 2010, alongside the existing fees in effect until that date:
Form No.
Application/Petition Description
Existing Fees (effective through Nov. 22, 2010
Adjusted Fees (effective beginning Nov. 23, 2010)
I-90Application to Replace Permanent Resident Card$290$365
I-102Application for Replacement/Initial Nonimmigrant Arrival-Departure Document$320$330
I-129/129CWPetition for a Nonimmigrant Worker$320$325
I-129FPetition for Alien Fiancé(e)$455$340
I-130Petition for Alien Relative$355$420
I-131Application for Travel Document$305$360
I-140Immigrant Petition for Alien Worker$475$580
I-191Application for Advance Permission to Return to Unrelinquished Domicile$545$585
I-192Application for Advance Permission to Enter as Nonimmigrant$545$585
I-193Application for Waiver of Passport and/or Visa$545$585
I-212Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal$545$585
I-290BNotice of Appeal or Motion$585$630
I-360Petition for Amerasian, Widow(er), or Special Immigrant$375$405
I-485Application to Register Permanent Residence or Adjust Status$930$985
I-526Immigrant Petition by Alien Entrepreneur$1,435$1,500
I-539Application to Extend/Change Nonimmigrant Status$300$290
Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of Orphan Petition$670$720
I-601Application for Waiver of Ground of Excludability$545$585
I-612Application for Waiver of the Foreign Residence Requirement$545$585
I-687Application for Status as a Temporary Resident under Sections 245A or 210 of the Immigration and Nationality Act$710$1,130
I-690Application for Waiver of Grounds of Inadmissibility$185$200
I-694Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act$545$755
I-698Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603)$1,370$1,020
I-751Petition to Remove the Conditions of Residence$465$505
I-765Application for Employment Authorization$340$380
I-817Application for Family Unity Benefits$440$435
I-824Application for Action on an Approved Application or Petition$340$405
I-829Petition by Entrepreneur to Remove Conditions$2,850$3,750
I-881Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–110)$285$285
I-907Request for Premium Processing Service$1,000$1,225
Civil Surgeon Designation$0$615
I-924Application for Regional Center under the Immigrant Investor Pilot Program$0$6,230
N-300Application to File Declaration of Intention$235$250
N-336Request for Hearing on a Decision in Naturalization Proceedings$605$650
N-400Application for Naturalization$595$595
N-470Application to Preserve Residence for Naturalization Purposes$305$330
N-565Application for Replacement Naturalization/Citizenship Document$380$345
N-600/600KApplication for Certification of Citizenship/ Application for Citizenship and Issuance of Certificate under Section 322$460$600
Immigrant Visa DHS Domestic Processing$0$165
BiometricsCapturing, Processing, and Storing Biometric Information$80$85

Wednesday, October 6, 2010

Procedural Admission is Lawful for Immigration Purposes

In Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), the Board considered whether the respondent was “admitted” to the United States, i.e., whether she made a “lawful entry” after inspection and authorization by an immigration officer under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(13)(A), where her admission was procedurally regular, but it was not in compliance with substantive legal requirements. The Board found that an alien need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status.
In 2001, the respondent approached the United States/Mexico border as a passenger in a car being driven by her United States citizen friend. At that time, she was not in possession of a valid entry document. She testified that the immigration inspector asked her friend, the driver, whether he was an American citizen but did not ask the respondent any questions. The officer then waved the car through the port of entry. In 2005, the respondent was served with a Notice to Appear charging her with inadmissibility as an alien who entered without inspection and who had no valid entry document. The Immigration Judge found her to be inadmissible as charged and statutorily ineligible for adjustment of status because she had not been “admitted” to the United States withing the meaning of section 101(a)(13)(A) of the Act, which defines the terms “admission” and “admitted” to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”
Previously, in Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), the Board had found that the term “admitted” demanded only procedural regularity and held that an alien who physically presents herself for questioning and makes no knowing false claim to citizenship is “inspected” even though she volunteers no information and is asked no questions by the immigration authorities. Considering whether Congress intended to change this interpretation with the 1996 amendments to the Act, the Board concluded that it did not and reaffirmed Matter of Areguillin. The Department of Homeland Security agreed but argued that the respondent did not establish procedural regularity at the port of entry because she had not shown that she was admitted in a particular nonimmigrant or immigrant status. The Board rejected that contention and remanded the case for adjudication of the respondent’s adjustment application.

Gender as Particular Social Group, 9th Circuit

Perdomo v. Holder, __F.3d__, 2010 WL 2721524 (9th Cir. July 12, 2010): The court granted the petition for review of a Guatemalan woman whose application for asylum had been denied by the Immigration Judge. The petitioner claimed to fear persecution as a member of a particular social group (“PSG”) consisting of Guatemalan women who, she argued, ran a greater risk of being murdered. The Immigration Judge rejected the proposed PSG and the Board affirmed, finding the proposed group to be overly broad. On appeal, the Ninth Circuit noted that although it had not previously held that females alone constitute a PSG, it had found in Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005), that female members of a particular clan met this definition and, in so doing, held gender to be an innate characteristic fundamental to one’s identity. The court also recognized in a footnote that the Third Circuit in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), held that gender constitutes a PSG and that Australia, Canada, and the U.K. had done likewise. The court found that the Board erred in its analysis, noting that it had found innate characteristics to be sufficient for PSG status in cases involving homosexuals and Gypsies. The court also stated that it had rejected proposed groups as overly broad in the absence of a unifying relationship or characteristic to narrow an otherwise diverse and disconnected group. The court pointed out that it had previously rejected the proposition that a group could not be a PSG solely because it constitutes too large a segment of society. Therefore the court remanded for the Board to consider in the first instance whether Guatemalan women constitute a PSG and, if so, whether the petitioner had established a well-founded fear on account of that characteristic.

Failure to Advise Free Legal Services, 3rd Circuit

Leslie v. Att’y Gen. of U.S., __F.3d__, 2010 WL 2680763 (3d Cir. July 8, 2010): The court vacated the decision of an Immigration Judge (affirmed by the Board) ordering the removal of a lawful permanent resident (“LPR”) convicted of the aggravated felony of conspiracy to possess and distribute 50 grams of “crack” cocaine, for which he was sentenced to 168 months of incarceration. The sole basis for vacating was the court’s finding that the Immigration Judge failed to advise the petitioner of the availability of free legal services, as required by 8 C.F.R. § 1240.10(a)(2). The court emphasized that an agency must comply with its own regulations “protecting a fundamental statutory or constitutional right of parties appearing before it” and that the failure to do so will invalidate the agency’s action, even where no prejudice is shown. The court found that the regulation in question falls within this category, because it protects the right to counsel in removal proceedings and derives from the due process right to a fundamentally fair hearing.

2nd Circuit - Fugitive Disentitlement Doctrine

Nen Di Wu v. Holder, __F.3d__, 2010 WL 3023810 (2d Cir. Aug. 4, 2010): The court held in abeyance the Government’s motion to dismiss an asylum seeker’s petition for review under the fugitive disentitlement doctrine. In appealing the Board’s denial of asylum, the petitioner moved the court to stay deportation during the pendency of the petition for review. The Government opposed the motion, prompting a request for a supplemental memorandum regarding its intent to enforce the removal order, and the court issued a temporary stay. The Government issued a “bag and baggage” letter and filed the motion to dismiss with the court some 16 days after the petitioner failed to appear for deportation. Noting its broad discretion to grant or deny a motion to dismiss under the fugitive disentitlement doctrine, the court added that such a decision “should be informed by the reasons for the doctrine and the equities of the case.” The court then discussed the traditional justifications for the doctrine. It also noted the need to consider the equities of the case (including whether the party provided an explanation for its fugitive status), and “the extent to which a party has truly evaded the law.” While the court found that the petitioner “technically” was “seemingly” a fugitive from justice, the record did not provide sufficient evidence to consider the relevant factors mentioned above. The court thus held its decision on the motion in abeyance pending briefing, and possibly oral argument, on the merits.

2nd Circuit Decisions - Costa v. Holder, __F.3d__, 2010

Costa v. Holder, __F.3d__, 2010 WL 2632186 (2d Cir. July 2, 2010): The Second Circuit upheld an Immigration Judge’s decision (affirmed by the Board) that the offense of sexual assault in the second degree under § 53a-71 of the Connecticut General Statutes was categorically an aggravated felony as a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act. The Immigration Judge relied on the Second Circuit’s 2003 decision in Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003), which reached the same conclusion. The court dismissed the petitioner’s argument that changes to the applicable Connecticut statute since the time of the court’s decision in Chery rendered the statute divisible and therefore subject to the modified categorical approach.

Thursday, September 2, 2010

Miami School in Immigration Fraud

August 30, 2010

Owner/operator and employee of Miami-based school sentenced for immigration-related fraud

MIAMI - A local woman was sentenced on Friday to 15 months in prison for her role in student visa fraud. This ultimately became U.S. Immigration and Customs Enforcement's (ICE) largest-ever student visa fraud investigation netting 116 administrative arrests of student visa violators.
Lydia Menocal, 58, from Miami was also ordered to serve two years of supervised release after she completes her sentence, pay a $5,000 fine and forfeit around $600,000 in money and property to the United States.
Her co-defendant, Ofelia Macia, 75, of Miami, also was sentenced on Friday to one year probation and ordered to pay a $1,000 fine.
Menocal was the director and sole shareholder of Florida Language Institute Inc. (FLI), a language school in a strip mall located at 947 Southwest 87th Ave. in Miami. Menocal and Macia, on FLI's behalf, applied to the Department of Homeland Security (DHS) in 2002 to authorize FLI to issue I-20 forms directly to foreign nationals wishing to enter or remain in the United States as full-time language students. I-20 forms are certificates of eligibility for non-immigrant F-1 student status for academic and language students. I-20 forms are necessary for potential foreign national students to obtain their F-1 student visas.
As part of the DHS application, the defendants stated that they had read and understood all the pertinent federal regulations governing DHS-approved schools, including the regulations requiring students to attend class at least 18 hours per week and requiring school officials to report students who were not attending regularly. Based on the defendants' representations that they had read, understood and agreed to abide by these regulations, DHS approved FLI's application to issue I-20 forms to foreign nationals wishing to enter or remain in the United States as full-time language students.
"This case serves a warning to other academic institutions that you will be investigated and prosecuted if you engage in this type of criminal activity," said Anthony V. Mangione, special agent in charge of the ICE Office of Homeland Security Investigations (HSI) in Miami. "One of the lessons learned from the September 11 attacks is that the U.S. government must be vigilant and aggressive in conducting investigations into organizations and persons who seek to exploit and corrupt America's legal immigration system for personal gain."
In November 2007, ICE-HSI special agents assigned to Miami's Compliance Enforcement Group initiated a criminal investigation dubbed "Operation Class Dismissed." The operation focused on Menocal and FLI after ICE received information that the school was allegedly fraudulently sponsoring foreign students. It was suspected that FLI issued I-20s without requiring the students to attend at least 18 hours of classes per week, as they had agreed to do under federal regulations.
On March 2, pursuant to a federal indictment, ICE-HSI special agents arrested Menocal and Macia on the criminal charges. Additionally, ICE special agents administratively arrested 116 student visa violators, who are currently facing immigration removal proceedings or have been ordered removed from the United States. About 36 of those students had turned themselves in to ICE following the March 2 enforcement action. More than 20 additional students, who were alleged to be attending FLI, departed the United States after learning about the March 2 ICE arrests.
Between July 2007 and March 2010, Menocal issued and signed hundreds of I-20s for foreign nationals wishing to attend FLI. On each form, Menocal swore under penalty of perjury that each student would be required to attend FLI for a full course of study, i.e., 18 hours a week. In fact, none of the hundreds of foreign nationals that Menocal issued I-20 forms to were required to attend FLI. Menocal did not report to DHS that these students were not attending class for the required 18 hours a week.
For example, in November 2007, DHS ICE officials conducted a site visit at FLI. The site visit was done while FLI was supposed to be conducting classes and 230 students were registered for the semester. Indeed, some students had signed in as if they had attended. But when DHS ICE officials visited FLI, no one was there, except for Menocal, Macia and some other school employees. The DHS ICE officials came back for a second site visit later that day and found only three students at the school, even though 13 had signed in. Menocal lied to the DHS ICE officials and said that 150 students attended class daily.
In 2007, two students in particular - K.R. and L.F.E. -were issued I-20s by Menocal, and were signed up to take classes, but almost never attended. Attendance records from 2007 show that neither student attended classes. When both students applied again to attend FLI in the fall of 2009, Menocal again issued the students I-20s and swore on the forms that they would be required to attend class 18 hours a week, knowing that they would not attend. For the second time, neither student attended the required classes. Indeed, Menocal allowed K.R. to take the midterm and the final examinations for the fall 2009 semester on the same day, in January 2010, after the semester had ended. Menocal did not report to DHS that K.R. and L.F.E. were not attending classes.
From July 2007 to March 2010, Menocal earned at least $600,000 by charging the foreign nationals for the I-20 forms, but not requiring that they attend class. The $600,000 represents the proceeds of Menocal's fraud.
Court records show that Macia, the school's office manager, was at the school daily and managed many of the school's operations, including the collection of payments. She knew that the foreign national students signed up to attend FLI were required to go to class at least 18 hours a week. Macia knew that as a designated school official she had a duty to report to DHS any students who were not meeting the attendance requirements. Macia also knew that the foreign national students who had been issued I-20s by FLI were not attending class 18 hours a week. Macia did not report to DHS that these students were not attending class.
Assistant U.S. Attorneys Roy K. Altman and Robert J. Luck, Southern District of Florida, prosecuted this case.

Monday, August 30, 2010

Obama Extends Sanctions Against Belarus

The White House
Office of the Press Secretary

Notice from the President on the Continuation of the National Emergency with Respect to Belarus


On June 16, 2006, by Executive Order 13405, the President declared a national emergency and ordered related measures blocking the property of certain persons undermining democratic processes or institutions in Belarus, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701-1706).  The President took this action to deal with the unusual and extraordinary threat to the national security and foreign policy of the United States constituted by the actions and policies of certain members of the Government of Belarus and other persons to undermine Belarus democratic processes or institutions, to commit human rights abuses related to political repression, including detentions and disappearances, and to engage in public corruption, including by diverting or misusing Belarusian public assets or by misusing public authority.
 Despite the release of internationally recognized political prisoners in the fall of 2008 and our continuing efforts to press for further reforms related to democracy, human rights, and the rule of law in Belarus, serious challenges remain.  The actions and policies of certain members of the Government of Belarus and other persons continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States.  Accordingly, the national emergency declared on June 16, 2006, and the measures adopted on that date to deal with that emergency, must continue in effect beyond June 16, 2010.  Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13405.
 This notice shall be published in the Federal Register and transmitted to the Congress.
June 8, 2010.

Friday, August 20, 2010

Judicial Powers of Immigration Judge - 564 F.2d 1302, LOPEZ-TELLES v. INS

564 F.2d 1302
Juana Zoraida LOPEZ-TELLES, Petitioner,
No. 77-1247.
United States Court of Appeals,
Ninth Circuit.
Nov. 25, 1977.
Bill Ong Hing, Unit Director, Patricia D. Lee, Managing Atty., Immigration Law Unit, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Cal., for petitioner.
Philip Wilens, Chief, Government Regulations & Labor Section, James P. Morris, John E. Harris, Attys., Crim. Div., Dept. of Justice, Washington, D. C., for respondent.
On Petition to Review a Decision of The U.S. Immigration & Naturalization Service.
Before ELY, WRIGHT and CHOY, Circuit Judges.
The petitioner is a citizen and native of Nicaragua. Shortly after the major earthquake there in 1973, she applied for and received a visa allowing her to visit the United States for a period of six months. In December, 1975, the Immigration and Naturalization Service (INS) issued an order to show cause directed to the petitioner and requiring a showing as to why she should not be deported for overstaying her visa. At the deportation hearings, she conceded deportability. She claimed, however, that since her home and possessions had been destroyed in the earthquake and her relatives killed, the immigration judge should terminate the proceedings for "humanitarian reasons." The judge declined the request on the ground that he had no authority to grant it. He ordered that the petitioner be deported, and his decision was affirmed by the Board of Immigration Appeals (BIA).
Here, the sole claim is that the immigration judge's holding that he had no statutory or "inherent" power to terminate deportation proceedings for "humanitarian reasons" was erroneous. We affirm.
Immigration judges, or special inquiry officers, are creatures of statute, receiving some of their powers and duties directly from Congress, 8 U.S.C. § 1252(b), and some of them by subdelegation from the Attorney General,8 U.S.C. § 1103. These statutes and the regulations implementing them, see, e. g., 8 C.F.R. §§ 212.2, 212.3, 242.8, and 242.17(a) (1977), contain a detailed and elaborate description of the authority of immigration judges. Nowhere is there any mention of the power of an immigration judge to award the type of discretionary relief that was sought here. Indeed, given the exacting and difficult eligibility requirements established as statutory grounds for discretionary relief, see, e. g., 8 U.S.C. § 1254(a) (seven years continuous residence, good moral character and extreme hardship required for eligibility for adjustment of status to permanent resident alien), the vesting by us of such broad power in an immigration judge would strike an anomalous note.
It is true that an immigration judge "may, in his discretion, terminate deportation proceedings to permit respondent to proceed to a final hearing on a pending application or petition for naturalization when the respondent has established prima facie eligibility for naturalization and the case involves exceptionally appealing or humanitarian factors; . . ." 8 C.F.R. § 242.7(a) (1977) (emphasis added). The petitioner in this case, although expressly given the opportunity to do so, made no such showing and, in fact, conceded that she was not eligible for naturalization at the time of the hearing.
It is also true that the agency's regulations permit the district director and certain other INS officials to terminate deportation proceedings as "improvidently begun" if the proceedings are terminated prior to the initiation of the actual hearing. 8 C.F.R. § 242.7(a) (1977). The BIA has reasoned from this that the immigration judge must consent to such termination once a hearing has been initiated, despite the generally narrow scope of his powers. Matter of Vizcarra-Delgadillo, 13 I. & N. Dec. 51 (BIA 1968). There is no hint in that decision, or in any other found by us, that the immigration judge can terminate proceedings on equitable or humanitarian grounds alone. Rather, these decisions plainly hold that the immigration judge is without discretionary authority to terminate deportation proceedings so long as enforcement officials of the INS choose to initiate proceedings against a deportable alien and prosecute those proceedings to a conclusion. The immigration judge is not empowered to review the wisdom of the INS in instituting the proceedings. His powers are sharply limited, usually to the determination of whether grounds for deportation charges are sustained by the requisite evidence or whether there has been abuse by the INS in its exercise of particular discretionary powers. This division between the functions of the immigration judge and those of INS enforcement officials is quite plausible and has been undeviatingly adhered to by the INS. See Matter of Wong, 13 I. & N. Dec. 701 (BIA 1968); 1 C. Gordon & H. Rosenfield, Immigration Law & Procedure, § 5.7b (Rev'd ed. 1975). Cf. Matter of Merced, 14 I. & N. Dec. 644 (BIA 1974), aff'd, 514 F.2d 1070 (5th Cir. 1975). We find no valid reason to overturn this well-established principle. Soriano v. United States, 494 F.2d 681, 683 (9th Cir. 1974) (long-standing agency interpretations of own rules entitled to great weight).
Nor does it aid petitioner to claim for the immigration judge the mantle of the "inherent" powers of the judiciary. The immigration judge is, as we have said, an officer created solely by statute, not the Constitution, and is an official quite distinct from those judges ordinarily deemed the federal judiciary. Cf. Ramspeck v. Federal Trial Examiner's Conference, 345 U.S. 128, 73 S.Ct. 570, 97 L.Ed. 872 (1953); Watson Bros. Transportation Co. v. Jaffa, 143 F.2d 340, 346 (9th Cir. 1944); 2 K. Davis, Administrative Law Treatise, § 10.06, at 34 (1958). Absent independent powers specifically conferred by statute, see, e. g., 5 U.S.C. § 556(c) (administrative law judges have certain powers over the conduct of proceedings), the immigration judge is completely subordinate to his agency. 2 K. Davis, supra, § 10.02, at 7; J. Chamberlain, N. Dowling, & P. Hays, The Judicial Function in Federal Administrative Agencies 36 (1940). As previously noted, the statutory powers of the immigration judge nowhere appear to contemplate the type of broad discretionary authority that the petitioner here would have us attribute to him.
The issuance of this court's judgment will be stayed for a period of 45 days so as to allow the petitioner time to arrange for her voluntary departure.
The respondent's order must be, and the same hereby is,

Friday, August 13, 2010

Fraudulent Driver License in Atlanta - Former Atlanta driver's license examiner and co-conspirator sentenced for selling Georgia driver's licenses

July 29, 2010

More than 40 fraudulent licenses were issued in Marietta

ATLANTA - Gbemisola Wellington-Salako, 36, of Marietta, Ga., and Jules Armand Che Siewe Achou, 33, of Atlanta, were sentenced Wednesday by U.S. District Judge Orinda D. Evans for conspiring to issue Georgia driver's licenses to people who did not qualify for them, but who were willing to pay up to $2,500 per license, following an investigation by U.S. Immigration and Customs Enforcement (ICE) and other law enforcement agencies.
Wellington-Salako, a former driver's license examiner, was sentenced to 15 months in federal prison, to be followed by three years of supervised release, and Siewe Achou was sentenced to13 months in federal prison, to be followed by three years of supervised release. A citizen of Cameroon, Siewe Achou will face deportation proceedings after he serves his sentence.
Both pleaded guilty earlier this year to conspiring to produce and distribute false identification documents.
"People like Wellington-Salako, who are willing to violate the public's trust for money, could potentially be impacting the national security of our country by giving legitimate documents to those who aren't entitled to them," said Brock Nicholson, acting special agent in charge of the ICE Homeland Security Investigations (HSI) Office in Atlanta. "These acts will not go unpunished."
According to court records, Wellington-Salako was a driver's license examiner in the Department of Driver Services (DDS) Customer Service Center on County Services Parkway in Marietta in June 2007 when she agreed to work with Siewe Achou to provide driver's licenses to people who did not qualify for them, but who would pay up to $2,500 for a license.
Siewe Achou would find customers and send them to Wellington-Salako, who would then issue them licenses without any tests or proof of legal residency in Georgia. Siewe Achou later shared the money that had been collected from their customers with Wellington-Salako. Eventually, Siewe Achou recruited other men to help him find customers for the conspiracy. Between June 2007 and September 2009, the conspirators caused the DDS to issue up to 40 fraudulent driver's licenses.
Three other individuals, Nambaladja Souleymane Fofana, 29, of Atlanta; Mohamed Cellou Bamba, 34, of Atlanta; and Omar Sheriff Manjang, 45, of Lawrenceville, Ga., were also charged in the conspiracy. They each pleaded guilty to assisting Siewe Achou in finding customers for the conspiracy. Fofana and Bamba were sentenced to prison for eight months, with deportation proceedings to follow. Manjang was sentenced to one year of probation.
This case was investigated by special agents of ICE Office of Homeland Security Investigations (HSI), the Georgia Bureau of Investigation, the Georgia Governor's Office of Consumer Affairs, the Georgia DDS, and an investigator from the DeKalb County Police Department.
"The successful investigation and subsequent prosecution of these defendants are yet another example of what can be accomplished when local, state, and federal agencies work together to identify and arrest those involved in criminal activity and subversive actions against our state and nation," said Director Vernon Keenan of the Georgia Bureau of Investigation. "The hard work and dedication of the U. S. Attorney's Office for the Northern District of Georgia, the U. S. Department of Homeland Security personnel, and GBI agents involved in this case are commendable."
"DDS is committed to combating driver license fraud and identity theft as demonstrated in the proactive work of the DDS Investigative Services team," said DDS Commissioner Gregory C. Dozier. "This case is a perfect example of how a multi-agency task force can unite to combat illegal immigration and identity theft and support homeland security."
Assistant U.S. Attorney William G. Traynor prosecuted the case.

Day Care Fraud in Brooklyn

August 10, 2010

11 charged in day care bribery and fraud scheme

NEW YORK - Eleven New York City residents were charged Tuesday in a massive scheme to defraud the government out of millions in day care subsidies following a joint investigation by the New York City Department of Investigation (DOI) and U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI) in New York.

Preet Bharara, the U. S. Attorney for the Southern District of New York, Rose Gill Hearn, the Commissioner of the New York City Department of Investigation (DOI), and James T. Hayes, Jr., the special agent in charge of ICE's HSI Office in New York, announced today the unsealing of federal charges against 11 defendants for allegedly operating a massive fraud and bribery scheme through which they more than $18 million intended to help needy parents obtain public assistance for day care services. The defendants also were charged with conspiring to pay and receive bribes to facilitate the criminal scheme.

"Individuals in positions of public trust must be held accountable when they abuse their authority for personal gain," said Hayes. "ICE will continue to work with its law enforcement partners to root out public corruption wherever it exists."

Four owners of day care service providers - Liudmila Umarov, Lyudmila Grushko, Yana Krugly, and Rimma Volovnick, all of Brooklyn, N. Y. - and seven New York City officials - Leonid Gutnik and Aleksey Vasilyev, of the New York City Human Resources Administration ("HRA"); Aurora Villareal, Dionne Rivers-Ettu, Emile Nekhala, and Carolyn Eason, of the New York City Department of Health and Mental Hygiene ("DOH"); and Mariya Rapoport, formerly of the New York City Administration for Children's Services (ACS) - are charged with participating in the scheme. All of the defendants were arrested this morning in the culmination of Operation Pay Care, a joint investigation led by the U.S. Attorney's Office for the Southern District of New York, DOI, and ICE.

Manhattan U.S. Attorney Preet Bharara stated: "As alleged in the Complaint, the parents of children enrolled in the Congregation's day care centers trusted Liudmila Umarov and her co-conspirators with the care of their children. But Umarov and her Congregation allegedly betrayed that trust by exposing the children to hazards and siphoning off millions of taxpayer dollars meant to provide safe, quality child care for deserving, hard-working parents. And the New York City officials charged today allegedly betrayed the public's trust, taking bribes to look the other way and grease Umarov's gravy train. If proved, today's allegations demonstrate that the defendants cared far more about their wallets than about the welfare and well-being of the children they were obligated to protect. Along with our law enforcement partners at DOI and ICE, we now begin the process of holding each of these allegedly corrupt actors accountable for their conduct."

DOI Commissioner Rose Gill Hearn stated: "These defendants chose payoffs and profit over their promise to serve the best interests of children, according to the complaint. Public funds were stolen to line the defendants' pockets and integrity was thrown out the window. But DOI and our federal partners exposed this criminal scheme and stopped the corruption. We will continue to work together with our federal law enforcement colleagues to protect children and taxpayers from criminals who exploit these social service programs to enrich themselves."

Wednesday, June 30, 2010

Voluntary Departure - Dada Decision - Motion to Reopen

(The decision has been implemented by the Final Rule, 73 Fed. Reg. 76927, effective January 20, 2009.)
The Supreme Court ruled that, when an alien is granted voluntary departure and then seeks to file a motion to reopen, “the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen.” (Emphasis added.) Here, two days before his voluntary departure period expired, the petitioner filed a motion to reopen, along with a motion to withdraw his request for voluntary departure, with the intention of applying for adjustment of status. The Board denied the motion to reopen, on the grounds that the petitioner had overstayed his voluntary departure period and thus was statutorily barred from adjustment of status. The Court rejected the government’s argument that, in the Court’s words, “by requesting and obtaining permission to voluntarily depart, the alien knowingly surrenders the opportunity to seek reopening.” The Court also rejected the petitioner’s argument that the voluntary departure period should be tolled while the motion to reopen is pending.
Please be aware of the following issues that immigration judges may encounter following the Supreme Court’s decision in Dada v. Mukasey.
Rejection of Automatic Tolling
• The Supreme Court in Dada resolved the circuit split regarding automatic tolling of voluntary departure upon the filing of a motion to reopen. Slip op. at 2.
• The Supreme Court rejected automatic tolling, and thus automatic tolling of the voluntary departure period upon the filing of a motion to reopen no longer exists in those circuits that formerly adhered to the practice.
Pending Cases
• The issue currently remains open as to how to address cases where motions to reopen were pending at the time Dada was decided on June 16, 2008.
• In a case where voluntary departure was granted by the immigration judge yet is on appeal to the Board, jurisdiction rests with the Board. Accordingly, requests to withdraw voluntary departure are appropriately addressed to the Board.
• Courts will need to reject improperly filed requests to withdraw voluntary departure using the uniform rejection policy for lack of jurisdiction.
Form of the Filing / Coding
• The Dada decision was silent as to the format of the request to withdraw voluntary departure and whether that request must be filed simultaneously with a motion to reopen.
• Because Dada recognized the right of an alien to withdraw his or her voluntary departure agreement prior to its expiration, courts should accept independently filed requests to withdraw voluntary departure.
• Additionally, the requests are distinct from motions to reopen and thus should not be treated or coded in CASE as motions to reopen.
Dada specified that an alien who withdraws his or her voluntary departure agreement is subject to the alternate order of removal. Slip op. at 18. The Supreme Court then stated that the alien could be removed within 90 days, and could request a stay of the removal order. Id.
• Notably, the Supreme Court asserted that a denial of a motion for a stay could be an abuse of discretion where non-frivolous grounds support the underlying motion to reopen. Slip op. at 19.
Voluntary Departure Bond
• The issue currently remains open regarding whether proof is required that the mandatory bond was indeed paid such that the alien has a valid voluntary departure agreement to withdraw.
Voluntary Departure Warnings
• The issue currently remains open regarding whether the voluntary departure warnings should be modified to provide the alien with notice of his or her right under Dada to withdraw voluntary departure in order to file a motion to reopen.