Bloggings On Deportation And Removal
Jan 07, 2011
The Obama administration's FY2011 404,000 deportations mandate has changed the immigration landscape in ways that are far reaching. The mandate is clogging our immigration courts to the point where due process is being eviscerated. Immigration Judges are overwhelmed, and Assistant Chief Counsel in many jurisdictions simply do not have the resources to properly handle their caseload.
Since the Obama administration has consciously decided to deport as many immigrants as humanly possible I have witnessed a rush to remove people like no other. This President's administration has made it quite clear that they intend to deport as many immigrants as possible, and they intend to do it as quickly as possible. Due process be damned. It is as if the humanity has been sucked right out of the deportation system altogether.
There once was a time before this President took office that attorneys were given time required to prepare motions to reopen cases when one of their clients were facing immediate removal from the United States. Not any more.
For example, I have a current case I'm working on that involves a man that has been in the United States for over twenty years. He escaped his native country where as an army soldier he was brutally tortured by other soldiers as well as by his commanding officer directly on account of his ethnicity... And when I say brutally tortured, I mean BRUTALLY tortured. In any event, my client ultimately escaped his country in order to save his life when he saw commissioned officers of his own ethnicity deserting the army because their lives were also in serious jeopardy.
After arriving in the United States my client was immediately encountered by immigration officials who locked him up and instituted immigration court proceedings against him. A lawyer represented him before the Immigration Court who appears to have been incompetent because my client was never even asked the threshold question of whether he had any fears of returning to his native country. As a result, the only form of relief from deportation that was requested by this lawyer on my client's behalf was voluntary departure. Asylum was never requested, which would have been a slam dunk case. After being granted voluntary departure my client was released from custody. He never departed the United States, and he has remained here ever since.
Twenty years have now elapsed and my client is married to a United States citizen. When my client met his wife she had two children from a previous relationship and he raised them as if they were his own. Many years later his wife sponsored him for a Green Card. It was discovered that my client was subject to a twenty-year-old final order of deportation, and despite the fact that he has no criminal convictions, and has been a law abiding member of United States society since his arrival, he was taken into custody and moved six hours away from from his family to the Buffalo Federal Detention Center in Batavia, New York to await his deportation.
I was retained on the 30th of December. I immediately contacted the deportation officer who was assigned to my client's case. I advised him that I was in the process of preparing a motion to reopen the 20 year old deportation order, as well as a motion for emergency stay of removal, and explained what the grounds for reopening were. The deportation officer told me that despite the fact that my client had been persecuted in the past, and expressed new fears of persecution as a result of a material change of country conditions in his native country, that the deportation officer would be moving forward with effectuating my client's deportation unless and until the order for stay was granted by the Immigration Court. Real humanitarian.
When I got off the phone I immediately drove the hour drive from my office to the detention facility in Batavia. I met with my client and prepared an asylum application. It took my client about three hours to describe all of the abuse that he suffered at the hands of agents of the government in his home country. He showed me the scars that he still bears. When listening to him it was evident that his emotional wounds where just as deep as the physical scars on his body. Hearing the accounting of his ordeal was mentally exhausting.
Once finished, I drove back to my office, and prepared the motion to reopen based on a material change of circumstances in my client's native country, and obtained evidence on the internet to corroborate my client's claim for asylum that would form the basis for the motion. I also prepared an emergency motion for stay of removal, and a motion for change of venue. These motions were filed the very next day on New Year's Eve. The deportation officer was provided a complete copy of everything.
After the close of business yesterday I received the Immigration Judge's order staying the deportation of my client. First thing this morning I faxed the Deportation Officer the order and called and left him a message asking him to consider releasing my client from custody pending a determination on the motion. The is fairly common practice, at least here in Buffalo, and I have another client who the government literally just agreed to release under very similar circumstances.
The Deportation officer called me back fairly quickly and told me that he would not even consider releasing my client from custody because he was subject to a final order of deportation. I explained to him that my client isn't going anywhere for quite some time. The officer then re-advised me that should the motion be denied that he will again quickly move to deport my client. I explained to him that even if the motion was denied that there is an appeals process that will result in further stays of my client's deportation for what may be years.
The Deportation Officer's response: "We will see about that." My response: "We certainly will."
The point being, the response I received today from the deportation officer was not common prior to Obama's election. Quite the contrary. Deportation officers were willing to work with defense counsel, especially on issues of custody. Apparently this officer didn't get the memo.
I guess I will just chalk this up to more "change" you can believe in.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law – including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).