Immigration Blog Luba Smal Attorney at Law - Smal Immigration Law Office

EB-5 Immigrant Investor Class Action Lawsuit Notice

2/14/2019

On Nov. 30, 2018, in Zhang v. USCIS, No. 15-cv-995, the U.S. District Court for the District of Columbia certified a class that includes any individual with a Form I-526, Immigrant Petition by Alien Entrepreneur, that was or will be denied on the sole basis of investing loan proceeds that were not secured by the individual’s own assets.

The U.S. District Court for the District of Columbia vacated these denials and ordered USCIS to reconsider the petitions.

If you believe you have received an I-526 denial solely on this ground and would like to identify yourself as a potential class member, USCIS had provided a contact email [email protected], and advised to contact them using the subject line “Zhang Class,” and provide the following:

Name
Alien Number (if any)
Date of birth
I-526 receipt number (if available)
Date of I-526 denial
Copy of I-526 denial (if available)

Lawful permanent resident can enlist in the U.S. Military: judge overturned Trump's ban

12/7/2018

A federal court issued a ruling on Friday, December 7, 2018, that halts a Trump administration policy that blocked hundreds of lawful permanent residents from serving in the U.S. military.

Lawful permanent resident or green card holders can enlist and serve in the U.S. Military, and can apply for naturalization or U.S. citizenship through their military service.

Judge held that the Department of Defense likely violated the federal Administrative Procedure Act after it implemented a policy discriminating against lawful permanent resident enlistees. Judge's ruling finds that the Defense Department provided no rational justification for the policy change, stating that it provided no evidence indicating that lawful permanent resident enlistees posed more of a risk than U.S. citizens.

Read more here.

Please note that in October 2017, the Department of Defense issued new policies that impact lawful permanent residents and other non-U.S. citizens in the military. The ILRC's practice advisory discusses how these policies affect those who seek to enlist, and those who currently serve in the military, including in the Reserve Components.

The DoD policy changes will not affect MAVNI enlistees because the MAVNI program was suspended in October 2016. No one has been able to enlist in MAVNI since that time.

Before making a decision to enlist and to apply for naturalization, please review the practice advisory (dated 03/2018 - will be revised soon) and consider that under new rules "expedited" naturalization may not be much faster than a naturalization under a default rule.

New Performance Review Standards and Quotas For Immigration Judges

10/29/2018

On October 1, 2018, for the first time in history, Immigration Judges were assigned a quota and ordered to complete 700 cases per year (3 cases per day), and will be penalized if over 15% of their decisions are overturned on appeal.

In addition, AG has limited their authority to grant continuances or to administratively close cases where applicants are eligible to apply for an immigration benefit under immigration law.

The American Bar Association has stated that “such quotas have serious implications for decisional independence.” Instead the ABA recommends establishing the immigration courts as Article 1 courts, independent of any executive agency and less susceptible to political currents.

What do the performance review standards require?

Under the new standards, which are set to go into effect on Oct. 1, 2018, to receive a “satisfactory” review an immigration judge must:

Complete 700 cases per year, and
Maintain a remand rate (from the Board of Immigration Appeals and circuit courts) of fewer than 15 percent per year.

Additionally, for a “satisfactory” review an immigration judge must meet at least half of the following benchmarks:

Issue decisions within three days of completing a merits hearing in 85 percent of non-status detained removal decisions
Issue decisions within 10 days of completing a merits hearing in 85 percent of non-status non-detained removal decisions (unless completion is prohibited by statute, such as cancellation caps)
Decide motions within 20 days of receipt in 85 percent of their cases
Make bond decisions on the day of the hearing in 90 percent of cases
Complete individual hearings on the initial scheduled hearing date in 95 percent of the cases (unless the Department of Homeland Security does not produce a detained respondent), and
Issue decisions in 100 percent of cases on the day of the initial hearing in credible fear and reasonable fear reviews (unless DHS does not produce a detained respondent).

Immigration judges are part of the executive branch of government within the Department of Justice reporting to the Attorney General.

Case completion goals of 700 per year translates into completing – issuing a removal order or granting relief such as asylum, cancellation or adjustment – nearly three cases per day, and it does not account for the hours an immigration judge must spend conducting master calendar hearings, bond hearings, attending trainings and reviewing case files. It is hard to imagine how a judge could ever give fair consideration to three cases per day, while simultaneously preparing for upcoming hearings, writing decisions on complex cases and responding to motions (within newly proscribed time limits.)

Judge ruled: DACA must be fully restored

8/6/2018

On August 3, 2018, a federal judge ruled that the government must fully restore the Deferred Action for Childhood Arrivals or DACA program, saying that the government's rationale for dropping it is inadequate. The government has 20 days to appeal. If not, DACA will have to be fully implemented on August 23 2018. The court order is linked below.

Briefly in Russian:

3 августа 2018 федеральный судья принял решение, что правительство должно полностью восстановить федеральную программу ДАКА, которая защищала от депортации молодежь, которых в детском возрасте привезли в США и с тех пор они живут в США без статуса. Программа была отменена указом президента в сентябре 2017 г. Если правительство не подаст аппеляционную жалобу до 23 августа 2018, то решение судьи вступит в законную силу 23 августа.

Court order if here.

Are Summary Denials Without a Full Hearing Coming to Immigration Court?

6/25/2018

"An attorney recently reported the following: at a Master Calendar hearing, an immigration judge advised that if on the Individual Hearing date, both the court and the ICE attorney do not believe the respondent is prima facie eligible for asylum based on the written submissions, the judge will deny asylum summarily without hearing testimony. The judge stated that other immigration judges around the country were already entering such summary judgments, in light of recent decisions of the Attorney General.I have been telling reporters lately that no one decision or policy of the AG, the EOIR Director, or the BIA should be viewed in isolation. Rather, all are pieces in a puzzle. Back in March, in a very unusual decision, Jeff Sessions certified to himself a four-year-old BIA precedent decision while it was administratively closed (and therefore off-calendar) at the immigration judge level, and then vacated the decision for the most convoluted of reasons. Matter of E-F-H-L-, had held that all asylum applicants had the right to a full hearing on their application without first having to establish prima facie eligibility for such relief. It was pretty clear that Sessions wanted this requirement eliminated.
On January 4 of this year, Sessions certified to himself the case of Matter of Castro-Tum, in which he asked whether immigration judges and the BIA should continue to have the right to administratively close cases, a useful and common docket management tool. On January 19, the BIA published its decision in Matter of W-Y-C- & H-O-B-, in which it required asylum applicants to clearly delineate their claimed particular social group before the immigration judge (an extremely complicated task beyond the ability of most unrepresented applicants), and stated that the BIA will not consider reformulations of the social group on appeal.
On March 5, 2018, Sessions vacated Matter of E-F-H-L-. Two days later, on March 7, Sessions certified to himself an immigration judge’s decision in Matter of A-B-, engaging in procedural irregularity in taking the case from the BIA before it could rule on the matter, and then completely transforming the issues presented in the case, suddenly challenging whether anyone fearing private criminal actors could qualify for asylum.
On March 22, Sessions certified to himself Matter of L-A-B-R- et al., to determine under what circumstances immigration judges may grant continuances to respondents in removal proceedings. Although this decision is still pending, immigration judges are already having to defend their decisions to grant continuances to their supervisors at the instigation of the EOIR Director’s Office, which is tracking all IJ continuances.
On March 30, EOIR issued a memo stating that immigration judges would be subjected to performance metrics, or quotas, requiring them to complete 700 cases per year, 95 percent at the first scheduled individual hearing, and further requiring that no more than 15 percent of their decisions be remanded. On May 17, Sessions decided Castro-Tum in the negative, stripping judges of the ability to manage their own dockets by administratively closing worthy cases.
On June 11, Sessions decided Matter of A-B-, vacating the BIA’s 2014 decision recognizing the ability of victims of domestic violence to qualify for asylum as members of a particular social group. In that decision, Sessions included headnote 4: “If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.” The case was intentionally issued on the first day of the Immigration Judges training conference, at which the need to complete more cases in less time was a repeatedly emphasized.
Within the past few months, the immigration judges have been warned that their livelihood will depend on their completing large numbers of cases, without the ability to grant continuances or administratively close cases. They have had the need to hold a full asylum hearing stripped away, while at the same time, having pointed out to them several ways to quickly dispose of an asylum claim that until weeks ago, would have been clearly grantable under settled case law.
There has been much discussion lately of EOIR’s improper politicized hirings of immigration judges. The above developments have created something of a Rorschach test for determining an immigration judge’s ideology.
The judges that conclude from the above the best practice is to summarily deny asylum without testimony are exactly the type of judges the present administration wants on the bench. They can find a “fatal flaw” in the claim - either in the formulation (or lack thereof) of the particular social group, or in the lack of preliminary documentation as to the persecutor’s motive, the government’s inability to protect, or the unreasonableness of internal relocation, and simply deny the right to a hearing. It should be noted that these issues are often resolved by the detailed testimony offered at a full merits hearing, which is the purpose of holding such hearings in the first place.
On the other hand, more thoughtful, liberal judges will find that in light of the above developments, they must afford more time for asylum claims based on domestic violence, gang threats, or other claims involving non-governmental actors. And in doing so, they will find it extremely difficult to meet the completion quotas set out by the agency with Sessions’ blessing. The removal of Castro-Tum’s case from the docket of Judge Morley is clearly a warning that the agency does not wish for judges to behave as independent and impartial adjudicators, but rather to act in lockstep with the agency’s enforcement agenda.
There is another very significant issue: most asylum claims also apply for protection under Article III of the U.N. Convention Against Torture. Unlike asylum, “CAT” relief is mandatory, and as it does not require a nexus to a protected ground, it is unaffected by the AG’s holding in A-B-. So won’t those judges pondering summary dismissal still have to hold full hearings on CAT protection? It would seem that a refusal to hold a full CAT hearing would result in a remand, if not from the BIA, than at the circuit court level."
Opinion by Jeffrey S. Chase, immigration attorney and former immigration judge you can read here.

USCIS is preparing to rescind the International Entrepreneur Rule

5/12/2018

The U.S. Department of Homeland Security (DHS) has taken the first step to officially rescind the International Entrepreneur Rule (IER), a program that allows qualifying foreign entrepreneurs an opportunity to stay in the United States while building start-up businesses. The proposed rescission cleared the Office of Information and Regulatory Affairs (OIRA) on May 2, 2018. DHS is expected to publish a formal notice of the rule in the Federal Register in the coming weeks.

The IER was enacted by the Obama administration in an effort to “increase and enhance entrepreneurship, innovation, and job creation in the United States.” The rule gave DHS discretionary authority to allow certain foreign entrepreneurs of start-up businesses with a “demonstrated potential for rapid business growth and job creation,” to enter under a parole status and stay in the United States to oversee and grow their start-up businesses.

However, mere days before the rule’s July 17, 2017, effective date, DHS filed a new rule delaying the implementation of the IER until March 14, 2018. DHS cited President's “Border Security and Immigration Enforcement Improvements” executive order as the reason for the delay. DHS explained that the executive order requires that parole be granted only on a case-by-case basis “when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

On December 1, 2017, a federal judge invalidated USCIS's delay, and found that DHS had violated the Administrative Procedure Act by not providing notice or an opportunity for advance public comment on the rule. As a result of this court order, USCIS had to launch the IER and began accepting applications.

In a statement appearing on the USCIS website, DHS makes clear its intention to rescind the IER “because it is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect U.S. investors and U.S. workers.” That statement also provides that “while DHS complies with the court order and implements the IER parole program, DHS is also in the final stages of publishing a notice of proposed rulemaking seeking to remove the IER.”

Once the proposed rule is published in the Federal Register, the rule will be opened up to the general public for comment, usually for a period of 30 or 60 days. After the comment period, DHS must resubmit its final rule to OIRA for one last review before the final rule can be published in the Federal Register. This process will likely take several months. At this time IER is still in effect, but is expected to be eliminated soon.

Second DACA Injunction: DACA Renewal Applications Still Accepted

2/14/2018

In the second injunction that blocks the Trump administration efforts to end DACA, Judge Nicholas Garaufis of the Eastern District of New York on Feb. 13, 2018 ordered U.S. Citizenship and Immigration Services to accept certain DACA applications while litigation continues.

The ordered relief mirrors the preliminary injunction issued by Judge William Haskell Alsup in the Northern District of California on Jan. 9. It required USCIS to resume accepting DACA renewal applications from people who had previously been granted that relief. This second nationwide injunction similarly requires the Department of Homeland Security to maintain the DACA program on the same terms and conditions that existed before the administration on Sept. 5, 2017, issued a memo to rescind DACA, with the following exceptions:

DHS need not consider new applications from individuals who have never before held DACA
DHS is not required to provide advance parole to DACA beneficiaries
DHS retains the discretion to adjudicate DACA renewal requests on a case-by-case, individualized basis.

The Department of Justice has requested that the U.S. Supreme Court review Alsup’s order on its merits, bypassing the usual process of appealing to 9th U.S. Circuit Court of Appeals. As early as Feb. 16, 2018, the Supreme Court could announce a decision to review the injunction.

While the injunctions remain in place, USCIS has advised people who have previously received DACA that they may request renewal by filing the following forms:

Form I-821D
Form I-765, and
I-765 Worksheet

Applicants whose DACA expired on or after Sept. 5, 2016 may file as renewal requestors. Applicants who previously held DACA and whose DACA expired before Sept. 5, 2016 may file as initial requestors. Applications from those who have never received DACA will be NOT be accepted, nor will applications requesting advance parole.

DACA policy will be operated on the terms in place before Sept. 5, 2017.

DACA Renewals Can Be Submitted: Judge Temporary Reopens DACA Program

1/10/2018

On January 9, 2018, a federal judge in San Francisco, CA temporarily blocked the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program that protects certain immigrants from deportation. The decision applies NATIONWIDE.

Judge said the Obama-era program must remain in place while litigation over Trump’s decision to end the program is pending. In a court ruling, Judge W. Alsup said the Department of Homeland Security's "decision to rescind DACA was based on a flawed legal premise."

Judge ordered USCIS to publish new DACA renewal instructions on their website, and start accepting applications.

As a result of this court ruling, DACA grantees can renew expired DACA, but can't file a new DACA.
(1) DACA recipients who failed to renew their status by the last year’s deadline can submit renewal applications. It is better to wait for the instructions from USCIS, to avoid any possible erroneous denial or rejection by a USCIS employees.
(2) The decision does not, however, allow new applications to be submitted.

Read an advisory here.

In Russian:

9 января 2018 федеральный судья вынес решение о том, что президент превысил свои полномочия, когда 5 сентября 2017 отменил иммиграционную программу ДАКА / DACA для молодежи, кого привезли в США в детстве и кто вырос в США, но не имеет ни грин карты, ни гражданства.

Судья приказал Департаменту госбезопасности (DHS - USCIS) опубликовать инструкции и порядок подачи заявлений на продление ДАКА статуса и получение разрешения на работу через ДАКА. Судья приказал USCIS начать прием заявлений немедленно, и опубликовать новые инструкции.

Лучше всего будет дождаться выхода официальных инструкций на вебсайте USCIS, скорее всего на следующей неделе, чтобы избежать ошибочного отказа. Хотя некоторые адвокаты советуют, что подавать заявление можно уже сейчас, так как судья временно приостановил действие указа президента в отношении DACA, и приказал USCIS игнорировать решение от отмене DACA как незаконное, и возобновить прием заявлений.

Что можно -- подать заявление на продление - DACA renewal.
Что нельзя -- подать новое заявление (new DACA application), или заявление на advance parole (travel document).

Federal judge rejected delay of foreign entrepreneur or startup parole rule

12/2/2017

On Friday, December 1, 2017, a federal judge in the District of Columbia ordered the Department of Homeland Security (DHS) to rescind its delay of a rule that allows some foreign entrepreneurs to stay in the United States to grow their companies.

Judge ruled in favor of a lawsuit filed by a U.S. venture capitalist group in September challenging a delay by DHS of the International Entrepreneur Rule.

The Startup Parole or International Entrepreneur Rule, passed by the administration of President Barack Obama in January 2017, would allow some foreign startup founders to stay in the United States for up to five years to develop their businesses.

Instead, in July 2017, just before the rule should have become effective, current White House administration delayed the implementation to March 2018, and even said it was “highly likely” to rescind the rule.

Judge agreed that the government’s actions violated the Administrative Procedure Act, which requires advance notice of new rules.

Read new here.

Information about Start-up rule on our Blog is here and July delay is here.

Ninth Circuit Court of Appeals Partially Approves Travel Ban 3.0, Bona Fide Relationship Test

11/16/2017

The Ninth Circuit Court of Appeals has ruled to partially uphold President's third attempt on a travel ban, so called Muslim Ban or Travel Ban 3.0.

Ruling on the injunction issued by the District Court in Hawaii that temporarily blocked the enforcement of the new ban, the Ninth Circuit held that the travel ban could go into effect, except with regard to people with a “bona fide relationship” with close family or with an entity in the U.S., such as an employer or a university. This standard was borrowed from the Supreme Court’s June 2017 decision on a previous travel ban.

Individuals from six countries (Chad, Iran, Libya, Somalia, Syria, and Yemen) may be banned from entry, unless they have a bona fide relationship with a U.S. family member or entity.

The Ninth Circuit decided that in addition to parents, spouses, and children living in the U.S., bona fide relationships could extend to grandparents, grandchildren, cousins, aunts, uncles, and brothers- or sisters-in-law. Entity relationships must be “formal, documented, and formed in the ordinary course,” including universities, businesses, and other institutions.

The travel bans on North Korea and Venezuela were not included in the original suit brought before the Hawaii District Court. Travel of immigrants or nonimmigrants from North Korea and Venezuela remains suspended (all travel for North Korea and entry in tourist or business visitor status remains suspended for officials of certain Venezuelan government agencies and their immediate family members).

The court ruling is here.

Federal Judge Blocks Muslim Ban 3.0, Except North Korea and Venezuela

10/17/2017

Federal Judge's order put a temporary injunction on a so called Muslim Ban 3.0 #MuslimBan3 (Travel Ban) with respect to all the countries except North Korea and Venezuela.

It means that citizens of Syria, Libya, Iran, Yemen, Chad, Somalia are no longer subject to the ban (at least while the judge's order is valid and wasn't overruled).

Only citizens of North Korea and Venezuela remain subject to this renewed travel ban signed by the president in September.

The decision from U.S. District Judge Derrick K. Watson in Hawaii will be appealed by the government, but for now, it means that the White House administration cannot ban the entry of travelers from six of the eight banned countries. This is good news for more than 150 million people, nationals of the six countries.

#ExecutiveOrder #MuslimBan #TravelBan

Read more here.

I-864 Affidavit of Support Creates Enforceable Contract Between Sponsor and Immigrant: Effect of Divorce

8/21/2017

On July 28, 2017, the California Court of Appeal, ruled that the USCIS form I-864, Affidavit of Support, creates an enforceable CONTRACT between the sponsor and an immigrant.

In Re Kumar case, an immigrant spouse asked court to enforce her right for support from her US citizen sponsor (spouse), based on the Form I-864, Affidavit of Support (“Form I-864”) that her U.S. spouse submitted to the U.S. federal government in connection with the Form I-130, Petition for Alien Relative he filed on her behalf.

The court held: "We hold that an immigrant spouse has standing to enforce the support obligation created by an I–864 affidavit in state court. We further hold that an immigrant spouse bringing such a claim has no duty to mitigate damages. Because the trial court's ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court to consider the immigrant spouse's contract claim in accordance with this decision."

Facts: US citizen spouse filed a form I–130 immigration visa petition for alien relative on behalf of his foreign wife, and the petition was approved. In connection with bringing his new wife to the United States, he signed a form I–864 affidavit of support (I–864 affidavit) and submitted it to the federal government. The purpose of an I–864 affidavit is “to ensure that an immigrant does not become a public charge.” (Younis v. Farooqi (D.Md. 2009) 597 F.Supp.2d 552, 557, fn. 5.)

”Under the heading “Part 8. Sponsor's Contract,” the I–864 affidavit signed by the sponsor gave the following warning: “Please note that, by signing this Form I–864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws.” On the same page, the affidavit explained that, by signing the affidavit, the sponsor agreed to “provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size ․” The affidavit further stated, “If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I–864 that you signed, that person may sue you for this support.”

This continues recent court rulings which have expanded the scope of liability for family-based immigration sponsors through the Form I-864, as the U.S. Court of Appeals for the Ninth Circuit did in June 2017.

The purpose of a Form I-864 is to ensure that an immigrant does not become a “public charge” and receive certain publicly funded benefits that would render that immigrant inadmissible under INA § 212(a)(4).

A Form I-864 is required for most family-based immigrants and some employment-based immigrants to show that they have adequate means of financial support and are not likely to rely on the U.S. government for financial support. A sponsor must show on a Form I-864 that he/she has income and/or assets to maintain the intending immigrant(s) and the rest of his/her household at 125 percent of the Federal Poverty Guidelines.

As indicated in the instructions of the Form I-864, the affidavit of support is a contract between a sponsor and the U.S. Government. However, Part 8 of the Form I-864 states that “if an intending immigrant becomes a lawful permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under Form I-864 terminate, you must [p]provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.”

In Re Kumar case, the California Court of Appeal looked to the statute, applicable regulations, the actual Form I-864 signed by the U.S. citizen, and federal and other state’s court’s opinions to guide its ruling. In particular, the court cited 8 C.F.R. § 213a.2(c)(2)(i)(C)(2), a federal regulation which provides that
“The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.”

Additionally, the court ruled that an immigrant spouse seeking to enforce the support obligation of Form I-864 has no duty to seek employment to mitigate damages. The court used the plain language at 8 U.S.C. § 1183a(a) and the rationale included in the case Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) to rule that “an alien’s failing to seek work or otherwise failing to mitigate his or her damages” is not an “excusing condition” of the sponsor’s obligations under the Form I-864.

In response to this case, it is important that U.S. sponsors or immigrants speak with experienced U.S. immigration attorney about the affidavit of support issue before signing any divorce documents. It is important to remember that:
*** the Affidavit of Support obligations don't end with divorce.
***Joint sponsor's obligations don't end with divorce, as well.
***An immigrant doesn't have to work or seek employment in order to mitigate sponsor's obligation of support.
***Sponsor's obligations end, for example, when an immigrant becomes a naturalized U.S. citizen, so it might be in sponsor's interests to ensure that a former spouse becomes a US citizen in order to end his or her financial support.

Federal Judge Puts the Second Travel Ban on Hold Nationwide: Muslim Ban Will Not Become Effective Tomorrow

3/15/2017

On Wednesday, March 15 2017, a federal judge in Hawaii issued a nationwide temporary restraining order on President's 2nd travel ban hours before it was to take effect.

It means that the travel ban was placed on hold and will not become effective, as of March 16th, all around the United States, not only in Hawaii. #travelban #muslimban #executiveorder

U.S. District Judge Derrick Watson issued his ruling after hearing arguments on Hawaii's request for a temporary restraining order involving the ban. His ruling prevents the executive order from going into effect Thursday, March 16, 2017, as it was scheduled.

Judge said he will not stay his ruling should an appeal be pursued. "The Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this order be filed," he said.

Hawaii argued that the ban discriminates on the basis of nationality and would prevent Hawaiian residents from receiving visits from relatives in the six mostly Muslim countries covered by the ban.

The state also argued the ban would harm its tourism industry, as well as its ability to recruit foreign students and workers.

Read here.

Read the text of the court opinion here (pdf file).

9th Circuit: US v RUFINO PERALTA-SANCHEZ: No 5th Amendment Right to Counsel in Expedited Removal

2/14/2017

The 9th Circuit Court of Appeals held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify him of the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4).

As a result, the panel concluded that the defendant’s 2012 expedited removal could be used as a predicate for his illegal reentry conviction, and affirmed the denial of the defendant’s motion to dismiss the indictment and the subsequent judgment and sentence as well as the revocation of his supervised release.

"We find that Peralta had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding and that he was not prejudiced by the government’s failure to inform him of the possibility of withdrawal relief."

"When we refer to the “right to counsel” in this case, we mean the right of an alien to hire counsel at no expense to the government. We do not refer to a right to government-appointed counsel."

The decision was published on Feb 7, 2017 and can be found here.

In Russian:

Апелляционный суд 9-го федерального округа опубликовал решение 7 февраля 2017, где решил, что обвиняемый не имеет конституционного права на адвоката когда он находится в иммиграционном процессе "ускоренной депортации" из США, так называемая expedited removal.

Суд уточнил, что это решение распространяется на тех, кто находится под ускоренной депортацией, не пробыл в США более двух лет, и здесь имеется в виду право нанять адвоката за свой счет (так как в иммиграционном праве США не существует права на бесплатного защитника, как, например, в уголовном процессе). В иммиграционном суде США в процессе, который не является "ускоренной депортацией", у обвиняемого обычно есть конституционное право нанять адвоката за свой счет. Решение суда тут.

9th Circuit Court of Appeals Ruled Against Muslim or Travel Ban, Refugee Admission Allowed, Injunction Upheld

2/9/2017

On February 9, 2017, the 9th circuit court of appeals ruled that President's travel ban (aka Muslim Ban) will remain blocked and unenforceable, and the temporary injunction granted by the federal district judge will remain in place (Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).

The ruling means that citizens and nationals of seven Muslim majority countries will continue to be able to travel to the U.S. (on any non-immigrant or immigrant visa), and refugees will be admitted to the United States of America, despite president's January 27th executive order (Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States”. 82 Fed. Reg. 8,977).

Text of the court order (29 pages) is here.

9 февраля 2017, апелляционный суд 9-го федерального округа вынес решение, и поддержал федерального судью, который запретил выполнение некоторых положений указа президента от 27 января 2017 (так называемый Muslim Ban).

Таким образом, запрет на въезд граждан семи мусульманских стран не действителен (и они могут приезжать в США как и раньше, до попытки президента запретить их въезд).

Въезд беженцев в США также разрешен (запрет на въезд беженцев считается недействителен, и все государственные агенства обязаны следовать решению суда)..

Следующий этап - президент уже объявил сегодня на твиттере - правительство и президент подадут апелляцию в Верховный Суд США, который в настоящий момент имеет только 8 судей (нужно 9 для кворума). Решение 4-4 оставит в силе решение нижестоящего суда. Кандидат на 9-ую должность судьи Верховного Суда уже есть, но пока не утвержден. Продолжение следует....

Текст решения суда (29 страниц) тут:
https://www.scribd.com/document/338916954/Washington-vs-Trump#

Judges Richard R. Clifton, William Canby and Michelle T. Friedland - 9th Circuit Court of Appeals