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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

I Want To Live...In America!

by Peter Reed Hill

This is the story of a memorable deportation battle which was recently fought by the author and was eventually won on behalf of a deserving client. If you like to read about courtroom sagas, feel free to read on.

The factual history of this case has striking similarities to the 1950's death penalty film classic entitled, "I Want to Live," starring Susan Hayward. My client "Angela" suffered through nearly five years of trials, tribulations, appeals, motions, and twice was held in I.N.S. custody in her quest to keep her legal permanent residence in the United States. Mandatory detention rules made it tougher for her to prevail. She eventually was rewarded for her patience but most foreign national candidates for permanent deportation do not have the fortitude which Angela did to tough it out in jail. Hopefully, Congress will abolish mandatory detention in "criminal alien" cases and allow a return to personalized bond hearings for criminal aliens. However, the author does not see this taking place in the current political climate. Congress ought to consider as an unnecessary expense the exorbitant cost of mandatory detention in criminal alien cases in a year of sharp budget cuts for everything except for homeland security and defense An extremely divided U.S. Supreme Court recently upheld the constitutionality of mandatory detention of criminal aliens in a case called Demore v. Kim, ___U.S.___, Case No. 01-1491 (2003). Nevertheless, this story should demonstrate how unfair, and arbitrary, and yes, sometimes un-American mandatory detention really is. No human being should ever have to go through what "Angela" did to remain in the United States. I am still amazed that she did.

I met "Angela" in the spring of 2000 in a local jail in Gainesville, Georgia, a small city on the shores of Lake Lanier about one hour north of Atlanta. When Angela was seventeen and still in high school, she smoked marijuana one night just like thousands, if not millions of teenagers before and after her. The next day Angela returned a friend's car which she had borrowed that night after dropping off two of her other friends. The problem presented to by my client's juvenile behavior was that Angela did not possess a driver's license. She was pulled over by the local police in Gainesville. In a momentary fit of panic, Angela temporarily drove off upon being pulled over and ran over a tiny portion of the arresting officer's shoe but she did not hurt him. Angela was subsequently arrested and charged with a number of offenses including DUI drugs (i.e. marijuana), felony obstruction of an officer and theft by receiving stolen property.

In a package "deal," Angela pled guilty to each and every charge. Her problems were exacerbated by the following factors. First, it turned out that her male friend's car was stolen. Second, when she was arrested she had her blood taken by the police. This is how the marijuana or "DUI drugs" charge arose. She could have fought many of the charges but in order to avoid a prison sentence if she lost the case her lawyer, a criminal prosecutor who had recently had switched sides of the aisle to perform criminal defense, advised her to plead guilty without a more extensive fight, such as the filing and litigating of a Motion to Suppress the evidence obtained by challenging the legality of the original stop. In any event, Angela's plea bargain was to confinement was for a term of 6 months house arrest for theft by receiving stolen property and for the felony obstruction of a police officer. Angela admitted to me in preparation for her deportation hearing years later that this was a time when she was a rebellious teenager. She paid for it dearly, and nearly lost her family as a result.

Perhaps I have not yet mentioned the minute but key fact in this case. Angela was born in Mainland China and immigrated to the U.S. when she was barely ten years old. When she was arrested, she had resided in the U.S. for six years and eleven months. This arbitrary number became important later, and might have doomed her chances to remain in the United States with her family. For many like her such an arbitrary number undoubtedly has meant the end of their time in the country. When Angela went to see her probation officer one day after her conviction, she was arrested by the former U.S. Immigration & Naturalization Service Special Agents and was later taken to Atlanta. When I first met her, I.N.S. had not yet transported her to Atlanta but the I.N.S. agents who are posted in Gainesville had already taken her from the probation office to Although I tried to negotiate Angela's immediate release upon her transportation to Atlanta as was occasionally possible at that time, it didn't work in this case. She appeared in front of the Immigration Judge after a week or two after behind detained in the local county jail in Decatur, Georgia which was then used on a contract basis by the I.N.S. to house hundreds of I.N.S. inmates, or detainees as 'civil' inmates are properly called.

The deportation charge against her was that she was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. On her behalf I vigorously denied this "charge," or characterization of her offenses, and in the alternative, we sought a waiver of inadmissibility based upon Section 212(h) of the Immigration & Nationality Act, 8 U.S.C. Section 1182(h)(1997). In a written ruling after requesting legal briefs on the question, the Immigration Judge reasoned that she was not convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Nevertheless, the Judge apparently concluded that Angela was convicted of an 'aggravated felony' which was not charged by the I.N.S. As a result, the Immigration Judge ordered her removed to her native Mainland China.

I went to visit and advise Angela in custody after the Judge's written decision and discussed with her why I thought that this ruling was completely wrong.[1] I explained that a judge cannot find someone deportable on a charge which is not asserted by the prosecuting I.N.S., and that Angela would very possibly win her appeal if she was willing to stay in jail until a decision was made. I also explained to her that the only way she could realistically get out of jail was either to bring a Constitutional challenge to mandatory detention in U.S. District Court, a time consuming and likely unsuccessful proposition in a conservative and deferential circuit court of appeals jurisdiction in immigration matters, or to wait and to hope that she would win her appeal. Angela agreed to wait for the result of her appeal while in custody. I advised her that a detained appeal would take a year. My estimate turned out to be three months shy of the time she would need to obtain the Board's decision. It took a lot of courage on Angela's part to "tough out" this appeal in jail. Most immigrants don't want to do it, despite whatever the ambiguity in the law relating to their case might present. The Government uses, or at least takes advantage of this de facto coercion to wear down the will of many immigrants to fight their case, many of whom have their entire past in this country to lose, often over one silly lapse in judgment, as was the case in Angela's brush with the law. This is the cruelest characteristic of mandatory detention - it prevents many deserving criminal aliens from asserting legal challenges in meritorious cases. Angela had more courage than most similarly situated immigrants although the author has represented several others who have demonstrated nearly as much fortitude under these circumstances.

To perfect the appeal, I filled out the standard Department of Justice forms, paid the $110 filing fee and attached a pleading entitled "Combined Notice of Appeal and Brief in Support" as my written appeal to the Board of Immigration Appeals. I usually file a notice of appeal and then await the receipt of a transcript to write a brief. In this case, Angela was in jail, and we wanted a quicker decision for obvious reasons. Another reason for deciding to take a short appeal was that there was no substantive testimony in the case to consider on appeal. In short, I argued that the Immigration Judge could not properly consider a 'charge' which was not before him or her. I sought termination of the proceedings to deport Angela. In the alternative, I urged that felony obstruction of a police officer was not a crime involving moral turpitude not arising out of a single scheme of criminal misconduct due to existing Board of Immigration Appeals case law on obstruction cases, and that alternatively, Matter of Adetiba, 20 I. & N. Dec.506 (BIA: 1992), the seminal Board of Immigration Appeals precedent decision on the issue, needs to be scrapped because it is wrongly decided. There is nearly no set of imaginable circumstances under which an alien charged with two separate offenses when arrested at the same time can escape the de facto deportation tentacles of Matter of Adetiba, supra.

After I filed the appeal, Angela was taken from Atlanta to the Walker County Jail. This local jail is located about a two hour drive northwest of Atlanta where I.N.S. houses most of the female inmates in detention during their extended 'removal' proceedings. Angela called me fairly often as most of my detained clients do. However, since her appeal was basically an all or nothing proposition. I told Angela to just try to be patient and to wait for the Board of Immigration Appeals to rule. I explained to her the concept of Purgatory, and that she might read Dante's Inferno while in detention. Unfortunately Angela was not able to graduate from high school due to her extended ordeal with law enforcement. However, she has become a dental assistant and wants to obtain her G.E.D. when she gets back on her feet financially.

Fifteen months later, or in June 2002, Angela excitedly telephoned me and told me that the I.N.S. detention officer checked the Executive Office for Immigration Review automated case information computer which can be reached with a toll free telephone number. The foreign born deportation officer told Angela that the Board had made a positive decision in her case, i.e. a decision which was not a dismissal of her appeal. I had not yet received the written decision from the Board when she called my office. Nevertheless, I told Angela to call back in a few days and that I should have received a copy of the decision by that time so I could explain to her what the Board had done.

I will never forget her next telephone call as long as I live. I told her that she had won her appeal outright and that deportation proceedings, now called 'removal' proceedings by Congress, were ordered terminated. The Board agreed with me about almost everything, including my alternative argument that Angela was not convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Angela screamed so loud into the telephone that it hurt my right ear although I really didn't mind. Angela's joy was to be short lived although we did not know it at the time. I.N.S. released her shortly thereafter. She, her mother and a close family friend from China brought me and my family a party basket complete with fruit, cheese, crackers and wine. My wife, who also happens to be Chinese but is from Taiwan, and my then two small children, enjoyed the gifts very much. I have luckily prevailed for many clients in a lot of different kinds of legal cases in my career but rarely if ever have clients been so appreciative. I will never forget Angela's and her family's generosity and heart felt appreciation. Unfortunately, this thankful attitude is not expressed by all of my numerous clients for whom I have avoided deportation, prison, or for whom I have obtained money, or avoided a judgment in civil cases. As Angela left my office that day, she made a statement which seemed peculiar at the time. She said, "No offense Mr. Hill, but I never want to see you again!" Unfortunately, she would later live to regret those words.

The following segment of the case remains a mystery, although I have a personal theory of what really happened. The next development in the case cannot be divorced from political developments in Washington, D.C. As background information, Attorney General John Ashcroft, a man who has never been shy about his stark conservative agenda, decided to overhaul the Board of Immigration Appeals system of dispensing immigration 'justice.' His critics say that the new system was merely a subterfuge to fire the 'liberal,' or pro - alien leaning judges of the Board. The Board had at one time a maximum of seventeen judges. Over the years the Board had increasingly been overwhelmed with appeals of deportation orders, its bread and butter, with appeals of asylum grants and denials, and with appeals from the denials of family based relative petitions.

There is substantial literature in the media about the cause of these appeals. The conservatives in the debate say that aliens file dilatory appeals just to remain in the U.S. There is admittedly some truth to this charge. However, those of us in the immigration defense bar, and Government lawyers all realize that the Draconian sets of laws known as the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 and the Anti -Terrorism and Effective Death Penalty Act have created numerous ambiguities manifested by circuit court of appeals splits on certain issues. Many of these ambiguities still need to be ironed out. Some already have been decided by the U.S. Supreme Court. Often ideological lines were drawn at the larger Board of Immigration Appeals which fostered even more appeals, and led to numerous written dissents in published precedent decisions. I know from talking informally to Immigration Judges and to immigration officers that these dissents angered the conservatives in the debate about the Board prior to Attorney General Ashcroft's expulsions, or "purges" as I would characterize them. Attorney General John Ashcroft either wanted to get rid of those judges who do not aspire to his conservative view of the Immigration & Nationality Act, or he wanted to speed up substantially the Board's decision making at all costs, or most probably both. I know that in my own deportation defense practice a well argued appeal used to take years for the Board to decide. Now litigants are lucky if the Board even tells them why a particular alien's appeal was dismissed although this is certainly not true in every case.

To return to Angela's saga, it now appears likely that someone from the former I.N.S. made an ex parte communication with the Board requesting reconsideration of this case. As referred to above, A.G. John Ashcroft eventually dismissed about half of the Board members in his "streamlining" of the system. One of the Board members involved in Angela's case realized that he or she was one of the Board members about to be fired, or "reassigned." This now dismissed Board member revealed in a dissent that the reason that the Board had decided to reopen the case was that there was an apparent ex parte communication in the case.

A slightly different Board panel of three judges then issued a decision reopening this case on its own motion, or sua sponte as Latin scholars would say. The rationale which the Board gave to reopen the case sua sponte four months after Angela was released was that no briefing schedule had been set in the case. This is an indeed curious justification when there was no testimony in the first hearing. In short, the original decision was based upon pure issues of the application of law to undisputed facts represented by sentencing sheets. To satisfy the Board's quest to "re-adjudicate" the case without the Government having filed any motion at all, as a Federal Judge would later adroitly observe, I filed a second appeal brief. This time the Government filed a vigorous argument seeking affirmance of the original deportation order based upon the still uncharged 'aggravated felony' conviction. The now 'legacy' I.N.S. lawyer still didn't follow his own regulations and lodge the additional charge on the specified form. It seems that procedural niceties do not mean as much to Government lawyers who by basic human nature do not have as much invested in each case which they handle as private counsel does. Furthermore, it is important to understand that in immigration cases in this country, Government prosecutors routinely seek results which ruin families if they prevail.

In my second brief I concentrated on the procedural default of the I.N.S. by asserting that the failure of the I.N.S. to appeal the Immigration Judge's apparent adverse decision meant that the issue of whether Angela was deportable for a conviction for two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct was not properly before the Board of Immigration Appeals. I also argued on the merits that in the absence of binding case law which clearly held that a similar crime to the felony obstruction charge[2] of which Angela was convicted constituted a crime involving moral turpitude, the rule that doubts are to be construed in favor of the alien in questions of whether or not the case involves a crime involving moral turpitude must control. Thus, Angela was still simply not a deportable alien, regardless of whether or not the case was decided in the first instances with a formal briefing schedule.

The Board ruled once again in August 2003, more than a year after Angela was freed from I.N.S. custody. This time the Board ruled that Angela was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. In other words, she was found to be a deportable alien. However, the Board found her to be eligible for discretionary relief, and remanded the case for an individual hearing before the Immigration Judge for Section 212(h) relief. I then decided to file a Motion to Reconsider within the jurisdictional 30 day time period. The Motion to Reconsider concentrated on whether or not the Board could lawfully decide that issue since it had been decided adversely to the Government in the original Immigration Judge's decision in March 2001 but was not appealed by the former I.N.S. The Board cited some civil case law from the U.S. Supreme Court and an 11th Circuit habeas corpus ruling in order to justify its denial of the Motion to Reconsider but tellingly did it not address the string of Board of Immigration Appeals cases which I had cited about the Board not being empowered to decide issues not properly before it.[3]

Angela's Motion to Reconsider was denied with another dissent in December 2003. This is the first case of any type I have tried in my career in which there have been two dissents at different stages of the proceedings. At one time in the case, I thought that there might be four or five dissents before the case was over. Luckily for Angela's sake and for my own sanity I turned out to be mistaken in this belief. A merits hearing was originally set for April 25, 2004. I prepared my client's family to testify as to the 'extreme hardship' to them if Angela were to be deported. The facts at that time would be that only Angela was bilingual in the entire family of four. Her younger brother came to the U.S. when he was four years old. Her younger brother cannot speak Chinese very well. Angela helped her parents to run their restaurant, to pay the bills, to read the mail, to write checks, and to help transport her younger brother to and from football practice. Angela's mother also had a heart problem as I recall. In a small immigrant family with limited linguistic skills Angela played a huge, indispensable role.

I inquired with the Court a few days before the hearing to see if the remanded hearing was really going forward. The computerized date base reachable by the toll free telephone number did not reveal any answers, however. Upon checking at the Immigration Court in Atlanta, I learned that the Board had not yet returned its file to Atlanta so the hearing could not yet go forward. In November 2004 the worst omen to date occurred in the case. I received a 'bag and baggage' letter for Angela to report ready for deportation on November 30, 2005. I responded with a letter directed to the official in charge of the deportation which outlined the procedural history of the case to date by reference to each of the various Board of Immigration Appeals decisions which should have been in the legacy I.N.S., now U.S. Department of Homeland Security file. I explained in my letter that Angela had finally been found to be deportable, but was not yet subject to a final order of deportation. I sent the letter to the deportation officer assigned to the case. I also sent it to Office of the Chief Counsel, the prosecutors' office. My letter also made it clear that I was exhausting administrative remedies on the issue of the validity of the order of deportation. Finally, I checked at the window of the local Immigration Court to see if there was an in absentia order of deportation. There was no such order. After receiving no response I called the U.S. Immigration & Customs Enforcement agent in charge of Angela's supposed deportation to explain to him that there was not a final order of deportation but only a finding of deportability coupled with a concurrent finding of statutory eligibility for relief under Section 212(h). He said that his lawyer said that the bag and baggage letter was correct and that she should show up on November 30, 2004. I replied that if you take her into custody [again] we will ask a Federal judge to settle this dispute. He probably did not believe that I meant exactly what I said.

On the day before Angela was to appear for her purported deportation she and her new U.S. Citizen husband came to my office. We prepared a Federal habeas corpus petition challenging the legality of her proposed detention. I tried to explain the legal theories to my client and her new husband although I sometimes get the feeling that my clients do not understand the strategy which I employ in their cases. The bottom line from that afternoon meeting was that I advised Angela that once now U.S. Immigration & Customs Enforcement officials took her into custody we would file suit in Federal Court after exhausting our administrative remedies, i.e. seeking a stay from the Immigration Judge and from the Board of Immigration Appeals. First, however, she had to be willing to tolerate more time in jail. Angela's eyes began to release tears and she started to sob. I assured her that I would ask a Federal Judge to end this case in her favor once and for all. She reluctantly but tearfully agreed to appear the next day. On the early morning of November 30, 2004 I waited for Angela at the now U.S. Department of Homeland Security building in downtown Atlanta but she did not appear. I can't really blame her. It turned out that she took a honeymoon trip to New York with her new husband instead of spending more time "in Purgatory." As an attorney who practices criminal defense as well, I sometimes lose sight of the fact that it is not me who has, or will do the time in jail when custody is in issue for a client. While waiting for Angela in the immigration building I ran into my neighbor and friend John Brent, an accomplished immigration attorney with more than 30 years experience in helping immigrants. I told John about this case. This was not the last time Mr. Brent would have anything to do with this case, as we will see below.

After our meeting in my office Angela understandably decided that she had endured enough custody in connection with her battle to remain in the U.S. I also forgot about this case for a while until I got a call from my assistant while I was on vacation in the Florida Panhandle after Christmas. Angela's family had called my assistant in my office and informed that she had been arrested "storm trooper" style. Five Immigration & Customs Enforcement agents came to her house at 5a.m. and arrested her while she was sleeping with her new husband at her parent's house. As an American Citizen who was fortunate to have experienced life under two dictatorships abroad in my student years, I must opine that any raid of a private home without a warrant disgusts me. It was the second time in four months that the newly organized U.S. Immigration & Customs Enforcement agents had performed a dawn raid at a client's private residence without a warrant. Section 287 of the Immigration & Nationality Act contemplates the arrest for any felony…"if the officer or employee has reasonable grounds to believe that the person to be arrested has committed a felony if the officer or employee is performing duties relating to the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest." (emphasis supplied) Section 287(a) (5) (B) of the Act. 8 U.S.C. Section 1357(a)(5)(B)(1990). I simply did not see that the 'likelihood of the person escaping' was the necessary predicate for entering a private home without a warrant in this case. The I.C.E. agents knew where Angela lived and they unilaterally decided that they didn't need a warrant to enter it without a warrant at dawn.

This type of arrogance of the police in thinking that they can do whatever they want to in the confines of a private residence reminds me of my year as a high school student in Barcelona, Spain on the School Year Abroad program when Generalissimo Franco was Spain's dictator. I later lived as student in another country with more of the same type of police state arrogance. I was fortunate to have been a Russian student in the former U.S.S.R. in then Leningrad, now Saint Petersburg, during the summer of 1978.

When the police do whatever they want to in order to enter a private home without a warrant and they are called to task for their activities, we as American Citizens all lose. The Fourth Amendment applies most forcefully in a private home as the U.S. Supreme Court has made it clear for years. (Extensive citations omitted). This Government ought to contemplate a little less preaching abroad about freedom and insure that the Constitution's mandates be more rigorously enforced at home. By virtue of these warrantless home intrusions our Government is sending a hypocritical message to the immigrant community. Members of the immigrant community are, after all, informal good will, or bad will, ambassadors to the rest of the world about what is taking place in the U.S. Those who order warrantless intrusions into private homes ought to consider the example which we, the champions of democracy for the world if you believe President Bush, are sending to the rest of the world. Our Government nearly evangelically preaches the virtues of democracy to select countries abroad. However, what is taking place at home is not quite as democratic as many on the home front are led to believe. The first part of the solution in immigration cases is simple: U.S. Department of Homeland Security agents should stay out of private homes without a warrant from a truly detached magistrate unless there is a truly emergent reason for doing so. It will take one half hour more of Special Agent time per "raid" of a private home but it will generate much more respect, or perhaps diminish the scorn, from the unintended witnesses of such unbridled, strong armed police tactics. The second part of the solution is to abolish mandatory detention for lawful permanent residents.

To return to the story, I had not thought much about Angela's case because I did not know where she went after she left my office. I was interrupted by a telephone call from my assistant while I was on vacation. I have a new combined cell phone and organizer which I keep with me even on vacation inside the U.S., unlike previous cell phone models. Carrying a cell phone while on vacation is one of the unfortunate drawbacks of working as a solo practitioner. My assistant only calls me on vacation when something is urgent. I dreaded that the phone call might be Angela's case when my cell phone vibrated while we were at lunch. Unfortunately, my instincts rang true. After lunch I paid little attention to the mini-golf outing with the children and directed the completion of the draft of the habeas petition which was saved on my computer. My neighbor and friend John Brent, to whom the reader was introduced above, was able to come to the rescue. John helped my assistant assemble, file, and attempt to serve the petition. I also informed John that a habeas corpus petition under 28 U.S.C. Section 2241 requires a verified petition, just like a habeas corpus petition in Georgia Superior Courts. Due to emergent circumstances, due to my being on vacation, and due to a lack of time and resources the hastily assembled team in my office did not prepare an administrative stay application. I thought better of this approach later on the way back from Florida when I would try again. My neighbor and fellow attorney John Brent who was assisted by Angela's new husband and my loyal assistant gave it his best shot but my neighbor had luckily not been involved in much of this type of emergency operation for years. This kind of work makes me want to expedite my date of retirement. It is situations like this one which make me yearn to hire a tireless associate so I can direct traffic without having to sweat the details, the logistics, and above all, cope with the stress of getting everything done, filed and served in a hurry. Unfortunately Mr. Brent and my assistant rushed downtown on December 30, 2005 only to arrive at the U.S. District Courthouse five minutes after the building closed - for the year!

My family and I returned to Atlanta from the Florida Panhandle on a Sunday, the day after New Years Day, or January 2, 2005. We stopped in downtown Atlanta on the way to our home north of the City of Atlanta. I went to visit Angela in the Federal pre-trial detention center which is close to the federal building which has housed the U.S. Immigration & Naturalization Service, now the U.S. Department of Homeland Security, for nearly 20 years. The Federal pre-trial detention center is not in the best part of town but it was not yet dark when we arrived. My family waited patiently in the car while I went in to talk to Angela to find out what happened on December 30, 2005. It turned out that the Immigration & Customs Enforcement agents truly believed that Angela had a final order of removal because the Board of Immigration Appeals case index showed a final order. The agent in charge of the case did check with a young trial attorney for the Immigration & Customs Enforcement. He appears to have advised that the bag and baggage letter was legal.[4] Unfortunately for our side's temporary fortunes, the young lawyer for I.C.E. was all wrong about this, unless he believed that a bag and baggage letter is a legitimate and legal way to enforce mandatory detention.

After dinner at home and before completing my unpacking from vacation I drove to my office to draft a motion for a stay of the "purported order of removal" to the Immigration Judge, and to draft another nearly identical motion for a stay of the "purported order of removal" to the Board of Immigration Appeals. I wasn't going to let Angela be 'kidnapped' and deported illegally without a fight. I know from a bitter prior experience that the case law in the various circuits didn't used to be all clear as to whether habeas corpus jurisdiction survives a wrongful, or 'erroneous' deportation. About nine years ago I had once failed to stop a probable erroneous deportation in Federal Court in Atlanta . I knew from this previous case that haste can be crucial to success. However, it was not a promising way to start the New Year from a physical standpoint. Vacations should be for rest, not for going into the office after being on the road all day in order to plan and to put the finishing touches on the execution of an emergency legal offensive. I was deprived of several more hours of needed rest before I started the new calendar work year.

I woke up early on January 3, 2005 to start the working year. When I arrived at the office I perfected the certificates of service for all of the filings except for the stay to the Immigration Judge. My assistant and I finished the copies necessary to serve the parties with the two stay applications and with the "Great Writ." I directed my assistant to call the Board of Immigration Appeals hotline and to attempt to file the stay either by reading the stay on the telephone, or by fax if anybody at the Board would accept it. The Board did not respond to our requests for a fax line, or return our calls this day. At about 10.00 a.m. I packed sufficient copies of both the stay application to the Immigration Judge and the 'Great Writ' into my 'war chest,' a briefcase on wheels, and drove fifteen minutes to reach downtown Atlanta. I filed the administrative stay application with the Immigration Judge after serving the only Immigration & Customs Enforcement attorney I could find in the Chief Counsel's office. Using my cell phone I directed my assistant to keep trying to fax a stay to the Board if they would finally give her a fax number that worked. Sometimes, if you are lucky, the Board will give you a working fax number to file a stay application. When I reached the Immigration Court in downtown Atlanta, the Immigration Judge who originally was assigned to the case was not in his chambers but one of his colleagues agreed to hear the stay application. It was a nervous half hour.

The Immigration Judge eventually denied the stay in writing based on the fact that he had no jurisdiction unless it was filed together with a Motion to Reopen, and due to language in an old "Marielito" Eleventh Circuit case which I do not believe is applicable to the facts of Angela's predicament. Oddly enough, the necessary requirements for a Motion to Reopen were probably lacking in this case at that time. There was no real new evidence other than my client's sudden, arguably unlawful detention. I could only rely on pure speculation and the fact that Angela had told me in our meeting on January 2, 2005 that she had already been given a warning about the criminal penalties for failing to produce a travel document. This was my sole proof available that the I.C.E. agents were attempting to act on an invalid order of deportation although they later admitted in Federal Court that there was not a valid order of deportation. I also knew that I did not want to use up my one "matter of right" Motion to Reopen[6] because I might need this Motion if it was determined that I needed an I-130 approval to seek adjustment of status in order to be granted a Section 212(h) waiver. I had already began work on an Immediate Relative Petition based upon Angela's marriage to her new U.S. Citizen husband but we stopped completion of this project once we got the improper bag and baggage letter from the I.C.E. agents. We decided to prepare the immediate relative petition despite that fact that we had the Eleventh Circuit precedent of Yueng v. I.N.S., 76 F. 3d 337 (11th Cir. 1996) on our side. This decision clearly says that as a matter of Equal Protection adjustment of status and immediate visa availability is not required for an existing lawful permanent resident to seek a Section 212(h) waiver. However, the Immigration Judges and the Government in Atlanta do not like this rule, and they sometimes seek to avoid its ameliorative holding. In any event the Immigration Judge's handwritten denial coupled with the Board's refusal to grant a stay was the ticket which I needed to file the habeas corpus petition across the street in U.S. District Court.

The filing fee was only $5.00! This has to be the best buy in U.S. Immigration law in an era when all the fees have skyrocketed but the service has lagged, at best. I informed the clerk at the U.S. District Court filing desk that this was an emergency case. I handed him the Immigration Judge's denial of the stay. He made a copy and gave it back to me. Eventually I was told that Hon. Richard W. Story was assigned to the case, and that I could go back to my office and they would call me. I learned later that U.S. District Court Judge Richard W. Story's staff called the U.S. Customs & Immigration Enforcement. The I.C.E. agents confirmed that they would not deport Angela until a hearing was held on the habeas petition. Sometime I would like learn of the deportation officer's and the trial attorney's reaction to the news of that phone call from the Federal Judge's chambers.

The District Court Judge scheduled a hearing for the Thursday of the first week of January. I amended the petition to clarify what relief I was seeking, i.e. a temporary restraining order against Angela's deportation as well as the original requests for relief. The Judge ordered the Government to produce Angela in Federal Court for the Thursday hearing. However, the U.S. Marshall's office declined to bring her because a habeas corpus petition is a civil case. The U.S. Immigration & Customs Enforcement evidently could not be bothered to find an agent to take her the approximate four blocks to Federal Court although I do not know what they told the Judge's staff about their inability to comply with his order. I think, although I will probably never know, that when the I.C.E. agents and/or their legal counsel contemplated that the Government had been picking on a cute, five foot tall Chinese girl for nearly five years over a bad teenage incident they took their chances in not producing her. I will never know for sure why they did not produce Angela in Federal Court for her hearing but I think that their failure to produce her dressed in a drab, orange jumpsuit hurt the Government's case.

Judge Richard W. Story conducted the case with oral argument much as a federal appeals court conducts oral argument. I could tell from the tenor of his questions that we had a good chance at prevailing. He asked the Government among other things what he could review, and he asked me if there was any case law would permit the nature of judicial review which I was seeking. I was well prepared for the hearing and responded with the 11th Circuit case Cadet v. Bugler, ____F.3d_____, Case No. 03-14565 (11th Cir. 2004), which spells out the scope of judicial review under 28 U.S.C. Section 2241, the Federal habeas statute. For the benefit of those readers who are interested in this critical and often decisive issue in immigration habeas corpus practice, this case also surveys the reported decisions of other circuit courts of appeals regarding the scope of habeas review under 28 U.S.C. Section 2241.

For once in my career in Federal Court litigation, the doctrine of 'deference to the agency' did not make it more difficult for my client. There were two Board decisions, so it would be difficult and probably unwise for the Government to invoke the 'deference to the agency' argument in the context of statutory interpretation. I also point out that the deference argument does not mean that the Court defer to the Government lawyers' arguments. Every time I file a Petition to Review in the Eleventh Circuit I dread the problem which this doctrine presents to the alien who seeks review of a deportation order based upon a question of law. Personally I think the doctrine of Chevron (citation omitted) deference to the agency in deportation matters, see Jaramillo v. I.N.S., 1 F.3d 1149 (11th Cir.1993)(en banc) should be trumped by the older U.S. Supreme Court doctrine that ambiguities in deportation statutes shall be decided in favor of the alien. See, for example, Cardoza - Fonseca v. I.N.S., 480 U.S. 421, 449 (1987). However, the few times I have raised this apparent contradiction in the Eleventh Circuit Court of Appeals I do not get a response from the Court. Perhaps the U.S. Supreme Court will resolve this 'clash of the competing doctrines' some day in the near future. Maybe my new client with the drug possession conviction who is located in the same Georgia prison which holds death row inmates will have a chance to force this issue in his case! In short, you have to be a bit of a dreamer to do immigration defense in the Federal Courts although this case was a dream come true for me. The Federal Court litigation was the beginning of the end of a long, bad dream for Angela, my poor aggrieved client.

My petition for a writ of habeas corpus asked for four counts of relief against John Ashcroft, the [former] Attorney General, Tom Ridge, the [former] Secretary of Homeland Security, and John A. Mata, the current Director of the Atlanta Immigration & Customs Enforcement office. These were the three Defendants, or more properly Respondents, in the Habeas Corpus petition. Count One of the Petition for a Writ of Habeas Corpus sought relief from detention which was purportedly, but not actually based upon a final administrative order of removal from the United States. Count Two sought relief from the finding of deportability. I argued inter alia that the Court could review whether the Government had procedurally defaulted on the issue of whether Angela was convicted of two crimes involving moral turpitude because it did not appeal the Immigration Judge's apparent decision that she was not convicted of two crimes involving moral turpitude. Count Three urged that the ex parte communication with the Board of Immigration Appeals constituted sufficient 'affirmative misconduct' to estopp the I.N.S. from proceeding further against Angela. Hibi v. I.N.S., 414 U.S.5 (1973) is the landmark case on this point. Although there are no reported cases on this issue I know of, my guess is that most experienced immigration practitioners dream that they can be the first to estopp the I.N.S. in a reported decision. I thought that maybe I had a shot in this case. Nevertheless, this Count was quick to ascertain that the Government's overall conduct smelled a bit rotten in this case. In fact, the Federal Judge picked up on the apparent ex parte communication in his subsequent 21 page order. Count IV alleged that since Angela received a first offender discharge on October 23, 2003 after fulfilling her probation requirements upon her release from I.N.S. custody the first time around, the Federal Government owed Georgia's first offender discharge statutory Full Faith and Credit. I cited In re Ignacio-Ruiz, 22 I. & N. Dec. 1378 (BIA: 2000) for this proposition. I do not know that this precedent decision has ever been followed in a case involving Georgia's first offender statute but I will attempt it when I get a chance to meet the issue squarely. This argument, like the estoppel argument, was not reached in this case.

In the petition I also pled the extent of my efforts to exhaust administrative remedies, with the exception of the two stay applications which were filed on January 3, 2005. These two applications had not been prepared at the time the original petition was drafted. I think that this it is important in habeas corpus practice because the Government will try to keep the case in their own administrative courts which can be controlled, as shown above, by policy makers in Washington with a conservative agenda. All of the sympathetic factors in a criminal related deportation case such as family ties, length of residence, age at the inception of residence, and hardship if deported apparently do not mean much to Cabinet level officials in the current administration. 'Compassionate conservatism' does have its limits.

After I argued Angela's case before Judge Story I returned to my office to handle the other matters which had been left unattended during the first week in January 2005. When I arrived to my office on January 14, 2005, my assistant told me that Angela had called. Surprisingly, it was not a collect call. Angela called me again in a half hour. I asked, "Angela, where are you?" She said that she was at home. It turned out that Judge Story had granted complete habeas corpus relief and had ordered her released immediately. This decision was a first in my career. A Federal Judge had ordered the U.S. Immigration & Customs Enforcement to do immediately that which they had no intention of doing. The Writ can be a marvelous thing for a defense lawyer and for his client.

I have often marveled, and sometimes lamented that the Immigration Judges do not have full power over the I.N.S., now the Department of Homeland Security. Sometimes Immigration Judges try to assert their "authority" over the I.N.S, such as to terminate proceedings if I.N.S. is too dilatory about adjudicating a pending relative petition necessary for their final adjudication of a case but this type of effort by Immigration Judges to exercise their institutional authority is rare. Whatever control the Immigration Judges have over the I.N.S. is really de facto control, not legal control. They system would be a lot fairer for immigrant families, for mixed nationality families, and for those who came to the U.S. at an early age and do not know their home countries and the languages of their native lands if the Immigration Judges were to have "equitable" power in each case, rather than to have the attorneys who appear before them argue with increasing frequency over whether clients' cases fit into 'cubby holes,' i.e. whether they are eligible for the increasingly restrictive forms of limited relief from deportation, or not. If Immigration Judges were given equitable powers, the individual justice rendered in the Immigration Courts would improve vastly. As shown above, however, I am a bit of a dreamer. Congress has plenary power over immigration decisions. Congress would never let Immigration Judges become this powerful. These judges might be able to do the right thing more often. Imagine that, readers!

I finally found Judge Story's decision as an e-mail once I checked my e-mail for the day. I had signed up for electronic filing which will be absolutely mandatory on July 15, 2005 in the Northern District of Georgia as it already is in some U.S. District Courts. Little did I realize when I signed up that the decision reporting system was also electronic and that the decision had been e-mailed to me promptly on the afternoon of January 13, 2005.sup>[7]

When I managed to print out Judge's Story's decision, it turned out to be 21 pages long. He and his law clerk really did a scholarly job, especially considering that immigration law often is as complex as tax law. Judge Story granted the Writ and ordered that Angela be released immediately. He concluded that Angela was not convicted of two crimes involving moral turpitude not arising out a single scheme of criminal misconduct. This was the basis of his holding. Due to his holding I thought that Angela's nightmare was finally over!

I was still wrong. The Assistant U.S. Attorney filed a Motion to Reconsider and a Motion to Dismiss. The young lawyer for the Justice Department (and who presumably represented the U.S. Department of Homeland Security as well) stated that I had not exhausted any administrative remedies other than my written objection to the bag and baggage letter. I couldn't let my opponent get away with this tall tale. I filed a copy of the response of the Immigration Judge's order denying the stay and a copy of the two stay applications. I also submitted a copy of the Motion to Dismiss the Stay Application to the Board which I had filed after the Federal Judge issued his opinion granting the Writ and ordering Angela's release. Once I checked the applicable Federal rules and determined that the Government had 60, not 30 days to appeal Judge Story's ruling to the Eleventh Circuit of Appeals, I then wrote a letter to the Immigration Judge and asked that he stay administrative proceedings pending a conclusion to the Federal Court litigation. When I received no response, I began to get angry. The Government had negligently or otherwise misrepresented our frantic efforts to exhaust our administrative remedies as a way to avoid the legal import of the District Court's ruling. An affidavit was filed with the Assistant U.S. Attorney's Motion to Dismiss which said that the agent only consulted the BIA index to determine that there was a final order of deportation.

Yet I knew from firsthand experience that the deportation officer in fact had consulted local counsel for U.S. Immigration & Customs Enforcement and had been given an apparent incorrect response as to whether it was a final order of deportation. I feared the worst. I though that I had seen everything in this case by now. I calculated in my chess playing mind that the Government was ignoring our now pair of victories and was 'sandbagging' us. In my worst case scenario the Government planned to strip the Federal Judge of jurisdiction by seeking and obtaining a discretionary denial of Section 212(h) relief at the merits hearing on February 25, 2005. I then decided that I would have to turn to the Judge who had granted us the most recent victory and attempt to seek his aid in securing our final victory. It took courage, although not enough as Angela had already displayed in this case, to file a Motion to Restrain Removal Proceedings and to Hold a Hearing to Determine if Sanctions (i.e. such as Rule 11 and contempt) Against the Government are Appropriate. I filed this Motion on Valentine's Day, and spent so much time on finishing and filing it that I did not have enough time to buy my wife a Valentine's Day gift. The Motion was not ruled on. I later found after the administrative case was over that the motion had been denied. You can't win all of the battles in a war! However, I would like to think that the message got through to the Government - Mr. Hill means business and he will defend his client by attempting to use the Federal Judge's power to bring you to your knees if you don't act reasonably. Some employees in Atlanta I.N.S. may have remembered that I have filed a petition for certiorari to the U.S. Supreme Court several years ago. I have also filed a complete emergency stay of deportation to the Eleventh Circuit Court of Appeals, and over the years I have filed numerous Petitions to Review deportation orders in the Eleventh Circuit Court of Appeals, and have launched several Federal Court challenges in district court. In other words, I am not intimidated by the Federal Courts as many immigration attorneys seem to be. After all, I was married in the Eleventh Circuit Court of Appeals courthouse in Atlanta, but we will have to leave that story for another day...

As I began preparations for a second time for the Section 212(h) hearing which I could not avoid, I ran into the Chief Counsel in the foyer to the District Counsel's office a few days before. This was when I was serving an application for cancellation of removal under Section 240A of the Act which I had filed. The Chief Counsel had filed a pleading which opposed my Motion to Continue in Immigration Court. In that pleading he mentioned that my client might be eligible for cancellation of removal for certain legal permanent residents under Section 240A of the INA. I decided that we could only lose $100 in filing fees plus the time it took to proffer the new application. He told me in the foyer to his office that I had a strong case for Section 240A cancellation of removal. I thought, well, perhaps they are not going to put up a vigorous defense to the cancellation of removal application, and to try to strip the Federal Courts of jurisdiction with a discretionary denial of Section 212(h), or 240A relief as I had feared. I sensed that the Government was also growing weary of what had become a two front war. I was getting worn out by this constant maneuvering, and I said so in footnotes in several of the pleadings which I had filed since Judge Story's original order granting Angela's second release from custody.

I am currently a solo practitioner and I have labor certification applications to file before the PERM regulations go into effect. I also must file combined I-140/I-485's before visas disappear for third preference beneficiaries of approved labor certifications. I do not have a factory business immigration practice - I do most of this type of work myself. I also have to continue to screen new clients to determine whom I can help and if I want their case, to handle the civil cases in my firm and to resolve the criminal cases I defend. In other words, this case was beginning to have a large opportunity cost for me. But I could not let Angela down. The Government had to stay on the defensive. This case required continued vigilance if we were going to prevail given all that Angela (and I) had been through.

The last intellectual challenge in this case was to find the law of the case doctrine which I first learned about after discussing this case with Jay Solomon, one of the wisest, brightest and best immigration lawyers in Atlanta, if not in the entire country. I found the best articulation of this doctrine I could with the limited resources in my home and my office library but I was not able to find it not until the day before the merits hearing. The "law of the case" doctrine basically holds that a lower court, or an equal but parallel court should not permit a losing litigant to relitigate a pure issue of law in a lower or an equal court without first appealing to a higher court. See Morrow v. Mangum, 580 F.2d 1284, 1289-1290 (5th Cir. 1978), adopted as the law of the circuit in Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). It is a rule which is more limited than res judicata. It effect, this doctrine is a rule of judicial economy.

My argument was that the Immigration Court should not have permitted the Government to relitigate the issue of deportability since Judge Story in Federal Court had already ruled under its 28 U.S.C. Section 2241 review powers that Angela's crimes did not constitute two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Thus, her deportability was established adversely to the Government by a Higher Court. I was urging that the Immigration & Customs Enforcement side of this controversy had to appeal the grant of the habeas petition to the Eleventh Circuit Court of Appeals, or to fold up their tents and surrender because they had lost on this threshold issue in District Court. Thus, I prepared an Amended Motion to Terminate, and included this and all other arguments of law in the case to date in order to guard against another future charge that I failed to exhaust my administrative remedies if Section 212(h) or 240A (a) relief were to be denied and I had to fight this case once again in the Federal Courts.

The final shock in the case came when I prepared at home for the merits hearing. I had already prepared the witnesses to testify. I got up early in the morning and went over the basics for cancellation of removal, the new application for relief which I had submitted. I "re-discovered" why I had not filed for cancellation of removal nearly five years ago. As I mentioned above, Angela had only been a resident for six years and eleven months at the time of the commission of her offense. I was at home and did not have access to the multiple interim decision research tools I use to be sure about a point of law. I use the index in the back of the interim decisions hardcover books and Bender's Immigration Case Law. I was confident however that if necessary I could argue that the date of the guilty plea must terminate the seven years of residence for cancellation of removal eligibility purposes, not the actual commission of the offense itself. The question of whether I had this rule right or not troubled me as I fought Atlanta traffic on the way to Court after dropping my younger son off at his school.

When I arrived in Immigration Court the Immigration Judge wanted to see us in chambers. He went over his original decision. He also explained what he had intended with his original decision as explained in a footnote above. The Government finally indicated that it was not going to oppose relief. The Chief Counsel had made a common sense assessment that this was the only criminal activity in the life of this near 23 year old, long term resident of the U.S. We had to decide between termination of proceedings yet again, Section 240A (a) cancellation of removal, and Section 212(h), the relief for which the Board had remanded. I had discussed this with my client this possibility the day before because I sensed after the conversation in the foyer to the Chief Counsel's office that the Government was thinking about folding up its tent. In chambers, we chose Section 212(h) relief because there were no ambiguities other than the Immigration Judge's uneasiness with an applicant filing for this relief without a concurrently filed adjustment of status application. We had a brief hearing, put on sufficient proof of extreme hardship to qualifying legal permanent resident family members into the record, and 212(h) relief was granted!

Angela's mother is the person in the courtroom who showed more emotion than anyone else. She was absolutely in tears. I hugged my client and then her mother. The Immigration Judge came down from the bench and handed the decision personally to Angela almost as if to apologize for her fifteen month stint in I.N.S. custody although it certainly wasn't his fault. Angela had made a tough gamble and it eventually paid off. In essence, I had advised my client five years ago that a riverboat gambler's ploy was the only alternative if she wanted to entertain any hopes of remaining in the country. I have been proven wrong on advising a client to take this type of gamble before, and I will be wrong again. Nevertheless, I was vindicated in this case. You learn how much America can be worth to people when they are willing to take this type of gamble to stay here.

What did I learn from defending this case? I probably learned more from this case than from any immigration case I have ever defended, except perhaps for the first few cases which I defended after I "hung up my own shingle" straight out of law school in Atlanta. This case contradicts the cliché which is popular among trial lawyers that you learn more from losing than from winning.

  1. The events in this case truly resemble the Oscar winning movie "I Want to Live," but it has a much happier ending than the Susan Hayward classic from the 1950's.
  2. It is increasingly more taxing physically, mentally and financially to handle this type of case, particularly so as I grow older.
  3. It was still worth it, especially with a victory for the foreign national in Federal Court which happens infrequently in these parts of the country, if not in all jurisdictions. The most satisfying part of this victory was that by virtue of my tenacity more than anything else, I made a huge difference in the life of an immigrant family which came from one of the poorer parts of China.
  4. I think that the Government may also have learned something from this case. For example, I have been promised by counsel that before the Chief Counsel will let the I.C.E. agents go out and raid a private home at 5:00a.m. they should first bring the file up to litigation to be sure that they are doing the right thing. The I.C.E. agents' raid of Angela's private residence at 5:00am backfired this time although I personally think that they should never do these raids due to the Fourth Amendment concerns expressed above.
  5. The attorney for the Petitioner almost always winds up understanding immigration law in greater depth than he did prior to engaging in Federal Court litigation. An attorney for the Petitioner needs to get involved in one of these cases to understand this phenomenon.
  6. This case taught me how brutal and un-American mandatory detention can be in select criminal alien cases. Angela was the exceptional client who had the courage and character to wait for fifteen months in jail for an uncertain ruling in her favor. She had to wager more than a year of her life to remain in this country. My educated guess is that Angela is the exception to the rule.

Herein lies the tragedy - there are many "Angela's" who were permanent residents who have been banished from the U.S. because they can't tolerate a year extra in jail to wait for the result of an uncertain appeal. I know this problem from experience as I have been asked to represent quite a few immigrants who were not willing to wait a year in custody for the results of such an appeal. The families of those deported immigrants will be permanently scarred by their permanent banishment from the U.S. I don't think that the U.S. is any better off, contrary to those conservatives who target criminal aliens. Under the current system in place, there simply is no second chance at life in the U.S. for most permanent residents who have a bad teenage night, as Angela did.

Congress needs to rethink the policy of mandatory detention. The use of jail to intimidate and to control reminds me of the Government control of the populace which was evident in my days as a student in Franco's Spain and later in Brezhnev's U.S.S.R. To put this argument another way, 'compassionate conservatism' must rise to a higher level than the mandatory detention of all criminal aliens. I have not mentioned any names in this case other than Judge Richard Story's because I do not mean to point fingers at anyone. As shown above, I did not have everything right in this case either. In the heat of the battle for my client's life in this country and for her family's well being I admit that I probably come off as abrasive at times. I mentioned Judge Story by name because he will probably publish this case since he and his law clerk put so much personal time and attention into the case. I also admire his heart. Many judges lack this essential quality which is necessary to be an outstanding judge.

The law is much more than words on a printed page - it is the application of all that is allowed by lawmakers above to permit the judge to do what is truly the right thing for those who come before him or her with their life altering problems. It is a far from an easy task. Judge Story saw straight to the heart of this case in a way that is rare and commendable for any judge. I also admire the Immigration Judge because he did what was right even though it would have been easier to play the Government's 'company card' and to make it easy to erase our first Board of Immigration Appeals triumph, and later our Federal Court victory with a denial of relief founded in the exercise of discretion.

It goes without saying that everyone in this case had a difficult job to do. The only person I can truly fault is the attorney (if there was one), or the agent, or I.C.E. executive (if there was one), who evidently convinced the Board to reopen the case because they didn't like the Board's first decision terminating removal proceedings. That person either lost sight of the fact, or never realized, that Angela was simply a mixed up teenager at the time of her confrontation with the police, not a future axe murderer. There were no justifiable reasons other than perhaps pettiness, possible racial prejudice or spite to pick a fight with such a petty convict again, especially after she waited 15 months in jail for the uncertain results of her first appeal. I urge all younger practitioners in this field to take one or two of these cases and put your heart into your work. When you demonstrate compassion for your clients you will always do a better job. Don't just go through the motions in these cases. You will almost never win. This case proves it!


1In what turned out to be the strangest twist of all in this case, the Immigration Judge had actually concluded in his order at the end of his written decision that Angela was deportable as charged in the Notice to Appear, the charging document in removal proceedings. However, the language of the decision itself indicated that the Immigration Judge did not think that she was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, so I overlooked this. Perhaps his law clerk agreed with the reasoning of my trial brief when he wrote the decision. In any event, as an appellate lawyer, I am trained to attack the reasoning of an adverse decision so I immediately focused on the favorable reasoning in the order. The order also stated that she was convicted of an 'aggravated felony' which, as the Judge intended, would disqualify her for any form of relief if as a threshold matter he had determined that she was deportable from the United States. I interpreted his analysis as the Judge finding her deportable on a ground which was not charged by the prosecuting I.N.S., and with which the Board later agreed. In short, I admit that I, and later the Board, had misunderstood the Immigration Judge's order.
2There is no doubt that the theft by receiving stolen property charge to which Angela pled guilty constituted a crime involving moral turpitude.
3I would like to acknowledge that I was ably assisted in this Motion to Reconsider by my former associate Ms. Suzanne Garstin who has subsequently joined the court appointed defense team for Eric Robert Rudolph, the accused Alabama abortion clinic bomber, infamous Federal fugitive, and accused Olympic Games bomber. I sorely miss having Ms. Garstin's legal skills and judgment to assist me with my case load.
4He may have advised that Angela's detention pursuant to the bag and baggage letter was legal under the mandatory detention provisions. I am not sure what the advice really was. I only know that the I.C.E. agents thought that Angela was subject to a final order of removal, and that my letter to the contrary did not merit further inquiry. They later admitted in Federal Court that I was right, although not in those words.
5 That case involved the issue of whether an alien who had been granted voluntary departure with an alternative order of deportation and who then reentered the U.S. illegally and was apprehended by I.N.S. agents was entitled to a second hearing before the Immigration Judge upon a showing that he had not self - deported the first time. Under existing case precedent my client was entitled to a second hearing before and Immigration Judge. He might have been able to adjust his status had he been granted a hearing before the Judge. However, the scant proof which we submitted to then I.N.S. that he did leave before his period of voluntary departure was ignored personally by the then District Director of I.N.S.
6The filing of Motions to Reopen and Motions to Reconsider by aliens have been limited by time and number first by regulation, and later by statute, to one per case. Citations omitted. 7Computers have come a long way since my first year at Reed College in Portland, Oregon in the mid 1970's. During my first semester at Reed a fellow student wrote his entire term paper on the word processing program on the giant computer in the physics department. That seemed to be a landmark in my teenage brain. About seven years later Reed would became the first college in the country, if not in the entire world, to provide every student with a personal computer, courtesy of Steve Jobs, a one time Reed College student and the founder and chief executive officer of Apple Computers.


About The Author

Peter Reed Hill is a solo practitioner in Atlanta, Georgia. He graduated from Reed College in Portland, Oregon in 1979 with a B.A. in International Studies. He subsequently graduated from the Thunderbird Graduate School of International Management in Glendale, Arizona in 1982 with a Masters in International Management, now an M.B.A. Finally, he graduated from Emory Law School in 1988. He has practiced primarily in immigration law but he also has extensive experience in criminal defense and in accident litigation, particularly since the Illegal Immigrant and Immigrant Reform and Immigrant Responsibility Act prohibited the legalization of the status of the vast majority of illegal immigrants present in the U.S. Mr. Hill studied in high school in Barcelona, Spain on the School Year Abroad program. He later in college in the former Soviet Union. He speaks Spanish every day at work. He used to be fluent in Russian after his summer in the U.S.S.R. and once worked as a Russian interpreter. While on trips to his wife's native Taiwan, the author manages to make everyone laugh with his broken Mandarin. The opinions in this article are solely those of the author.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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