Matter of Avetisyan and Immigration Court Case Control

A seasoned immigration attorney, Ms. Alison Yew, started a discussion regarding tactics in immigration court. I responded to her question, and thought the answer could be useful to other practitioners and individuals working on immigration cases.

Matter of Avetisyan is a case relating to the judge's discretion to admin close a matter over DHS's objections. The case states that "neither an Immigration Judge nor the Board may abdicate the responsibility to exercise independent judgment and discretion in a case by permitting a party’s opposition to act as an absolute bar to administrative closure of that case when circumstances otherwise warrant such action."

I've requested DHS's stipulation to _TERMINATE_ (as opposed to admin closure) on the grounds the respondent (my client) has basis to adjust status (married to US citizen, whose I-130 petition has been approved, and client entered the US on a visa which he has now overstayed). In my motion to terminate I want to use the Matter of Avetisyan, but this is an admin close case. Has any one successfully argued that Avetisyan applies to termination?

Great question, and sure, we've used this before. That case actually stands for the fact that an IJ can't relinquish his/her duty to decide a motion (or case!) to the DHS attorney. Although this was couched in the argument of admin closure, it is not strictly tied to that. The judge must weigh the merits his/herself. As such, it applies to any application or motion where you would like the judge to rule on an action over the objection of DHS. The exception, of course, is when a statute or CFR requires DHS concurrence in order to move forward.

"In deciding individual cases, an Immigration Judge must exercise his or her independent judgment and discretion and may take any action consistent with the Act and regulations that is appropriate and necessary for the disposition of such cases. 8 C.F.R. §1003.10(b)." - Matter of Avetisyan

If you have a question regarding immigration court, or tactics for handling (or closing!) your case, give us a ring! We'd be glad to help.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

How to release an immigrant from detention if the underlying case is dropped

A bit of a mouthful for this blog title -- but it is a surprisingly common topic. What steps do you follow if the case is terminated in Immigration Court, but the client is still detained. This usually happens when there is a joint motion to close (terminate) proceedings, but the Court has not yet ruled on the case. When the next status hearing (called a Master Calendar hearing in Immigration Court parlance) is several months away, or the Court has not yet set a status date, the idea of staying detained when the government has moved to close the case is...galling.

From a fellow practitioner in New Jersey:

I have a case of first impression and I hope you can give me some guidance. OCC [Ed: Office of Chief Counsel -- another name for opposing counsel in an immigration case] just terminated proceedings against my client because his conviction is no longer considered a crime of violence. His next hearing date is December 13, 2016 at Elizabeth, NJ.

My question is: can I get him out sooner since OCC is terminating or must my client wait an additional month in detention (seems counter-intuitive but this is the Government) for the hearing I which the judge will release him?

That isn’t handled by the Court – early release would be through ICE (Immigration and Custom Enforcement - or ICE - is responsible for detaining aliens; although the Court can set bond in certain cases, ICE always has jurisdiction pursuant to ). I would petition his DO (deportation officer). Generally, they want the bed space. Do the following:

• Write a formal letter to the DO stating the reason for releasing your client early
• Include a copy of the Government's motion to terminate
• Include a copy of your G28 (if you have not already)
• Include a copy of the policy memorandum governing release (see here: policy)

And then nag the hell out of the DO guy (or gal). If the DHS counsel is willing to sign on to your letter, get that signature, too. The main kick, though, is through the DO.

Do you have a question regarding immigration procedure, court, or policy? If so, call us! You can reach us at 1-800-579-9864 or email at admin@hanoverlawpc.com. You can also visit our website, www.hanoverlawpc.com for additional information on immigration laws, policies, and procedures, as well as issue related to criminal, family, and business (civil) law.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com