Though not a published or precedential decision, the District Court of New Jersey recently issued a significant ruling regarding mandatory detention and whether an individual is entitled to a bond hearing. In Demanche v. Taylor, et. al., the Court ruled that the Petitioner, who had filed a Habeas Corpus Action to determine the lawfulness of his custody, was entitled to an individualized bond hearing despite the Department of Homeland Security's argument and position that he was subject to mandatory detention for having committed an aggravated felony and two crimes involving moral turpitude. The Court examined the issue of what constitutes a reasonable interpretation of the "when... released" language of Section 1226(c) and found that, in line with the plain meaning of the statute, "when" does not mean "any time after" release. In this particular case, DHS took custody of the Petitioner five years after he was released from his criminal sentence. Maybe the result might have been different if the time period were shorter, but in this particular instance, five years did not conform to the spirit or plain meaning of the statute regarding mandatory detention of aliens.
We have received word that the USCIS offices in New Jersey will be closed tomorrow due to Hurricane Sandy. The Newark and Mount Laurel Offices will be closed.
In an interesting decision out of the First Circuit, Sheikh vs. Holder, the Court of Appeals recently ruled that it was not an abuse of discretion for an Immigration Judge to deny a six-month continuance to the Respondent to wait for the passage of comprehensive immigration reform that would allow him to possibly adjust status. In this particular case, the Respondent, Mr. Sheikh acknowledged that while he was not eligible to adjust his status based upon an approved I-140, and that he had no other pending applications, he argued that the Judge committed reversible error by failing to grant his request for a postponement, so that "a change in immigration law would inure to his benefit." The BIA affirmed the Judge's decision, and eventually the case made its way up to the Court of Appeals. The case is an interesting read because it reviews the standard for continuances as laid out in Matter of Hashmi, 24 I&N Dec. 785 (2009), considerations of which include:
1) the [government's] response to the motion; 2) whether the underlying visa petition is prima facie approvable; 3) the [alien's] statutory eligibility for adjustment of status; 4) whether the . . . application for adjustment merits a favorable exercise of discretion; and 5) the reason for the continuance and other procedural matters.
This week, the Department of Homeland Security announced an extension of TPS or Temporary Protected Status for nationals of Haiti. According to the public release, the extension period will begin next year, January 23, 2013, and end on July 22, 2014. Those who currently have TPS as Haitians who wish to extend their TPS status must re-register during the sixty day reregistration period that runs through November 30, 2012. It is important to note that individuals who have not continuously resided in the US since January 12, 2011, will not be eligible. According to USCIS, "Temporary Protected Status (TPS) is a temporary immigration benefit that allows qualified individuals from designated countries (or parts of those countries) who are in the United States to stay here for a limited time period. A country may be designated for TPS by the Secretary of Homeland Security based on certain conditions in the country that temporarily prevent the country's nationals from being able to return safely, or in certain circumstances, the country's government from being able to handle their return adequately. A TPS country designation may be based on on-going armed conflict, environmental disaster, or other extraordinary and temporary conditions in the country."