Oral arguments will be heard at the Supreme Court on March 31, 2010.

Under harsh immigration laws enacted in 1996 and their strict enforcement by federal authorities, even long-time lawful permanent residents (“green card” holders) with extensive family and community ties to the United States are now subject to mandatory detention and deportation if they are convicted of a drug-related “aggravated felony.”  In recent years, interpretations of this aggravated felony definition—aggressively pushed by Department of Homeland Security prosecutors and upheld by federal immigration judges—have included low-level drug possession, even when there is no jail time involved, and have included even state-expunged dispositions upon successful completion of a drug rehabilitation program.

Immigration lawyers and immigrant organizations have actively advocated against such harsh laws and policies for years.  One such organization is the Immigrant Defense Project (“IDP”) (formerly known as the New York State Defenders Association).  IDP has been challenging in multiple courts and before the Board of Immigration Appeals the government’s overbroad interpretations of what constitutes a “drug trafficking crime” aggravated felony.

Check out IDP’s great website for details about its involvement in federal court immigration litigation, which has significantly impacted the rights of immigrants.  IDP has submitted a brief in support of the Petitioner in Carachuri v. Rosendo.

© 2010, Thaker Berowitz LLP. All rights reserved.

Some interesting facts include:

♦The number of immigration prosecutions has continued to increase and now account for 54% of all federal criminal prosecutions.

♦ Illegal reentry of a deported alien accounted for 22,000 prosecutions in FY 2009.

♦ Potential drug smuggling charges were brought less frequently.

Click here to read the entire summary prepared by the AIC.

© 2010, Thaker Berowitz LLP. All rights reserved.

The Supreme Court had to decide whether it was sufficient to trigger 1252(a)(2)(B)(ii) for something to be specified as “discretionary” under the regulations.

On January 20, 2010, the Supreme Court rendered a unanimous decision in the case, and held that the 8 U.S.C. § 1252(a)(2)(B)(ii) only applies to the Attorney General’s (i.e. the BIA’s) decisions that are made discretionary by the statute (the Immigration and Nationality Act), not to determinations that are made discretionary by the Attorney General himself through regulations (i.e. Title 8 of the Code of Federal Regulations).

While the Court did not specifically resolve other issues, such as whether its opinion extends to reviews of discretionary relief (such as adjustment of status), such that a review of an underlying motion to reopen for that discretionary relief would be precluded by the statute, this is a significant development in current immigration laws, because it signals a departure from the previously foreclosed opportunity to challenge a denial of a motion to reopen, which, by itself, was typically considered “discretionary” and ancillary.

Under current immigration laws and regulations, only one motion to reopen may be filed and it must be filed within 90 days of the Board of Immigration Appeals’ decision dismissing an appeal.

© 2010, Thaker Berowitz LLP. All rights reserved.