Filipino immigration amnesty applicant wins stay of removal

A Filipino we represented in applying for amnesty under President Obama’s executive action called Deferred Action for Parental Responsibility (DAPA) won a temporary stay of his removal from the U.S. Court of Appeals in San Francisco six days before the BIA order for his removal became final.

 

This is the first case granting a stay of removal of an alien seeking amnesty. We told the court that this case involves a novel question of nationwide significance that potentially affects scores of aliens similarly situated as petitioner—whether an alien’s motion for continuance in a removal proceeding on the ground that the alien seeks to avail of President Obama’s deferred action for parents of United States citizen children and who have lived in the United States for more than five years constitutes a “good cause” for continuance under 8 C.F.R. § 1003.29 and precedent decisions like Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009), Flores v. Holder, No. 12-2406 (02/26/2015 CA2) and In re Hashmi, 24 I. & N. Dec. 785, 790 (B.I.A. 2009).

This case tests the sincerity of the Obama administration in granting amnesty. The only way the Attorney General’s attorneys can beat us is if they admit that Obama’s amnesty is illegal or that it does not apply to the Filipino applicant. But if they do that, many people will conclude that the amnesty is a mere “palabas” to gain Hispanic votes for the Democratic Party. After the Filipino applied for DAPA, a federal judge stopped its implementation because it was not issued in accordance with law. The Obama administration is fighting that case. Case No. B-14-254, U.S. District Court, S.D. Texas, Brownsville Div. See our article “Obama’s immigration amnesty program blocked by judge”.

The Caucasian counsel who represented the Filipino in the Immigration Court and the Board of Immigration Appeals (BIA) and lost told the mother of the amnesty applicant not to pursue an appeal (petition for review) because he believed the Court of Appeals had no jurisdiction and would not stay his removal.

The mother contacted me. I drafted a petition for review, told her and her family to read it, and to call me if she believed that the court would stop the removal of her son. It was shown to the Caucasian lawyer. He joined me in filing the petition. His name even appears first. I did not object since alphabetically his name precedes mine. (An acquaintance once said that if I were white and my name started with “A” like “Abracadabra” I could be making thousands from Filipinos with colonial mentality. I promoted him from an “acquaintance” to a “friend”).

The Filipino had been placed in removal (deportation) proceedings for conviction of promoting a dangerous drug and possession of drug paraphernalia. (I told him that with a better strategy in the criminal court he might have gotten off with a lesser offense and a better chance in the immigration court.  But that is another story). He asked the Immigration Judge to continue the hearing for two months to await the President’s executive action after the election. This was only the second request. (In another deportation case, a different IJ continued the case 12 times).

The IJ in this case refused, saying that it was “speculative at best” and ordered the Filipino removed. A modicum of respect for the President would have prompted any other IJ to continue the case until after the election. The BIA affirmed. What did you expect?

The Court of Appeals has jurisdiction over an appeal from a final decision and order of the Board which seeks a review of constitutional claims, questions of law, and abuse of discretion. INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]. The issue here is whether the IJ and the BIA abused their discretion and did not follow the regulations in denying continuance.

The Supreme Court has specified the conditions for a stay of removal in Nken v. Holder, 556 U.S. 418, 434 (2009), namely: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

We established that the Filipino satisfied the conditions for a stay of removal.

 (Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to “The Tipon Report”, the wittiest, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to this article.)