US Immigration Blog

Archive for January, 2010

The United States Supreme Court has ruled that Courts can review denials of Motions to reopen proceedings. The opinion, Kucana v. Holder will provide safeguards in judicial review of such motions and is a win for those seeking review of their cases on appeal.  It debunks the previous position that Courts lacked jurisdiction over discretionary decisions made by the Board of Immigration Appeals.

For those who are new to removal proceedings, a removal case is initially decided by a US Immigration Judge.  The Immigration Judge may grant or deny the relief requested by the person being removed.  In that case, the person being removed (often called Respondent), then can either file a motion to reopen proceedings with the Judge who denied his or her case, or file a direct appeal with the Board of Immigration Appeals.  (BIA).

In most cases, failure to appear will result in an order of removal being entered in absentia (as in this case).  The respondent ordered deported in absentia can file a Motion to reopen proceedings and the Immigration Judge would then decide if the Motion ought to be granted or denied, as matter of law and as a matter of discretion.    Some Courts (this case emanated from the Seventh Circuit) had taken the position that they lacked jurisdiction to review denials of such Motions decided by the Board of Immigration Appeals per (Real ID Act of 2005).    The Supreme Court of the United States disagrees in this new ruling written by Justice Ruth Bader Ginsburg.

Citizens and Nationals of Haiti living in the United States can apply for TPS starting today, January 21, 2010.  Temporary Protected Status (TPS), once granted, will allow those eligible to obtain an Employment Authorization Document (EAD).  Those in removal or deportation proceedings can halt such proceedings by having their cases administratively closed.

Haitians in the United States must show that they were living in the United States on January 12, 2010 and must not have been convicted of a felony or two misdemeanors.

Some key things to note:

- You are eligible for TPS even if you had applied for asylum and the asylum application was denied

- You are eligible for TPS even if another Immigration application you had filed was denied

- You can still file for any other Immigration benefit while on TPS

- You might be eligible for Advance Parole (permission to leave the United States and to re-enter after a short stay abroad)

-  Temporary Protected Status is a short-term relief and for Haiti this program will run for 18 months.

- Your application must received during the registration period (for Haiti within 6 months).

Nationals of Haiti living in the United States will be allowed to apply for Temporary Protected Status (TPS), Homeland Security Secretary Janet Napolitano announced Friday, January 15, 2010.

Temporary Protected Status is offered to nationals of countries facing extreme civil strife or natural disasters (such as hurricanes and earthquakes).

TPS offers relief in two ways.  First, nationals of the designated country (Haiti) cannot be removed or deported to Haiti during the designated period.  Therefore those in removal proceedings can file motions to have their cases administratively closed.  Second, it allows those granted TPS to apply for an Employment Authorization Document (EAD).

Nationals of Haiti would need to establish that they were in the United States on January 12, 2010, the date of the earthquake, to deter those in Haiti from traveling to the United States to seek TPS.  The TPS designation is for an 18 month period.